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THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


«r  *^  ^"^  Remove 
J^om  l.ibrury. 


A  TREATISE 


ox  THE 


LAW  or  PLEADIXG  AND  PRACTICE 


UNDER  THE 

PROCEDURAL  CODES 

ADAPTED  TO  USE  IX 

ALASKA,  ARIZONA,  CALIFORXIA,  COLORADO,  HAWAII, 

IDAHO,  KANSAS,  ilONTANA.  NEBRASKA,  NEVADA, 

NEW  ^lEXK'O.  NORTH  DAKOTA,  OKLAHOMA, 

OREGON,     SOUTH     DAKOTA,     UTAH, 

WASHINGTON,  AND  WYO:\nNG 

Le   mcster  dc  counter. — Britt.   c.   22. 
(The   mystery   or   art   of   pleailing.) 


BY 

JAMES  M.  KERR 


SAN  FRANCISCO,  CALIFORXIA 

BENDER-MOSS  COMPANY 

Law  Book  Publishers  and  Sellers 

1919 


T 


Copyright,  1919, 
BENDEK-MOSS  COMPANY 


FOREWORD 


5 

^  

,^  Some    new    features    are    iiitroduced    in    the    present 

^  treatise,  (le])arting-  in  a  marked  manner  from  anytliini^-  to 
])e  found  in  any  other  treatise  on  C'ode  Pleadini^-  and 
Practice;  and  the  fond  hope  is  in(hil<;ed  that  the  i)rofes- 
sion  may  find  Parts  I  and  II  of  this  treatise  sufficient 
justification  for  its  existence — being  practically  all  new 
matter,  designed  to  assure  attorneys  in 

Getting  the  right  start  in  an  action;  for  getting  the 
right  start,  either  in  Law  or  in  Life,  is  a  very  important 
matter,  upon  which  fulcrums  the  success  in  the  one  or  the 
career  in  the  other.  There  is  a  great  deal  of  sound 
philosophy  in  Davy  Crockett's  motto:  "Be  sure  yon  are 
right,  then  go  ahead";  and  this  homely  aphorism  should 
be  the  fundamental  rule  of  all  practitioners,  in  instituting 
an  action  or  proceeding  at  h\w  or  in  equity. 

Pythagoras' s  saying  that  "the  beginning  is  half  of  the 
whole,"  or  the  same  precept  in  popular  parlance,  to  tlie 
effect  that  "well  begun  is  half  done,"  is  peculiarly 
applicable  to  law-suits.  On  the  other  hand,  in  Shake- 
spear's  view, 

Things  bad  begun  make  strong  themselves  by  ill.i 

Every  laivyer  knows  the  general  rules  of  pleading  and 
practice,  is  assumed  in  the  preparation  of  this  treatise; 
it  is  the  illustrations  or  applications,  and  the  exceptions 
to  the  general  rules  the  average  lawyer  wishes  at  hand 
for  ready  reference, — and  these  it  is  sought  to  give  as 
completely  as  is  practical  in  a  treatise  of  two  volumes 
^  which  seeks  to  cover  the  whole  field.     To  illustrate  :   The 

chapter  on  Removal  of  Cause-  is  a  comprehensive  and 
orderly  resume  of  decisions,  not  an  attempt  at  an  ex- 
haustive ti'eatment, — a  sort  of  necessary  "first  aid," 
which  will  lead  unerringly  into  the  broader  field  of  com- 

1  Maebelh,  Act.  Ill,  Scene  ii,  1.  oj.  -  S§  137oiiL'. 


pl(4e  discussion.  Tiiis  feature  is  entirely  new  in  its  scope 
and  method  of  treatment,  giving  the  various  steps  to  be 
taken,  and  the  grounds  of  removal,  as  they  are  set  out  in 
the  Judicial  Code,^  with  some,  but  not  all,  of  the  pertinent 
decisions. 

Assistfulness  to  Bench  and  Bar  has  been  one  of  the 
main  objects  in  the  preparation  of  this  treatise,  within 
the  field  it  essays  to  cover;  and  to  this  end  it  has  been 
sought  to  so  arrange  the  matter  treated  as  to  render  the 
volumes  most  easily  consulted,  and  serviceable  as  a 
Avorking  tool.  The  distinctive  features  will  appear  upon 
examination;  but  special  attention  may  be  directed,  as 
illustrations  of  this  method  of  treatment,  to  the  chapter 
on  Demurrers,* — in  which,  among  other  matters  dis- 
cussed, are  treated  the  kinds  of  demurrers,^  wliat  de- 
murrer reaches,**  and  when  it  lies,"  testing  the  complaint 
by  demurrer,^  and  the  like, — the  nine  grounds  on  which 
a  defendant  can  demur  to  the  complaint  are  arranged 
seriatim,*^  with  appropriate  discussion  and  authorities 
under  each  ground  of  demurrer.  In  the  chapters  de- 
voted to  the  Answer, ^°  for  instance,  the  Pleas  that  may  be 
filed  in  a  civil  action  are  arranged  and  discussed  in  their 
alphabetic  order, ^^  with  a  pretty  full,  if  not  exhaustive, 
collection  of  the  ''Special  Pleas "^^  which  may  be  filed 
under  the  various  classes  of  pleas,  similarlj^  arranged  and 
discussed,  with  numerous  pertinent  and  illustrative  cases 
cited.  Other  parts  of  the  treatise  are  prepared  in  the 
same  methodical,  orderly, — and  it  is  hoped,  assistful, — 
manner. 

Pasadena,  Cal.,  July  15, 1919.  James  M.  Kerr. 

s  §  28,  5  Fed.  Stats.  Ann.,  2nd  ed.,  p.  16.    8  §§  890-910. 
*  U  872-1032.  9  §§  915-1022. 

r.  §§886-889.  iM§  1038-1198. 

6  §  885.  "  §§  1093-1096. 

T  §§  883,  884.  .  12  §§  1097-1168. 


CONSPECTUS 


PART  I. 

GENERAL  PRINCIPLES. 
CHAPTER  I. 

INTRODUCTORY. 

1.    In  General.                                            «  .. 

Section 

Purpose  and  plan  of  work 1 

Remedies  generally 2 

S.    Action  and  Cause  of  Action. 

Action  defined 3 

Divisions  of  actions 4 

Cause  of  action — Nature  and  elements  of 5 

Damage  without  wrong — Damnum  absque  injuria 6 

S.    Special  Proceedings  Not  Actions. 

Definition  of  special  proceeding 7 

Illustrations  as  to  what  are  special  proceedings 8 

4.   Provisional  Remedies. 

What  proceedings  are 9 

In  what  consist — Illustrations 10 

CHAPTER  IL 

GENERAL   FUNDAMENTAL  PRINCIPLES   OP   PLEADING. 

In  general 11 

Purpose  of  chapter 12 

Pleadings  originally  oral — Now  required  to  be  in  writing 13 

English  system  of  pleading  exceptional 14 

Materiality  of  issue 15 

Certainty  of  issue 16 

Singleness  of  issue 17 

Duplicity  and  misjoinder  of  issues 18 

Common-law  pleading 19 

The  formal  pleadings  at  common  law 20 


VI  CONSPECTUS. 

CHAPTER  III. 
CHANGES   MADE  BY  PROCEDURAL   CODES. 

Scctioit 

Introductory   21 

Code  pleading  not  founded  on  common-law  pleading 22 

Object  of  code  pleading 23 

Allegations  under  code — Facts  only 24 

Illustration 2') 

Common  counts — How  far  allowed  under  code  pleading 2G 

Special  demurrer 27 

Motion  to  make  more  definite  and  certain 28 

Forms  of  actions  abolished,  but  not  the  remedies 29- 

Artificial  distinctions  and  fictions  abolished 30. 


CHAPTER  IV. 

JXmiSDICTION — IN  GENERAL. 

Departments  and  powers 3r 

Judicial  function 32 

Definition  of  jurisdiction 33 

What  acts  are  included  within 34 

Ministerial  officer  not  included S.) 

Essentials  of  jurisdiction 3(V 

Judisdiction  depends  upon  authority 37 

Jurisdictional  defects 38 

Acts  without,  or  in  excess  of,  jurisdiction 39' 

Objection  to  jurisdiction — Must  be  timely 40 

By  plea  in  abalomcnt 41 

By  motion 42 

Presumption  as  to  jurisdiction — Rebuttal 43 

Consent  of  parties — Confers  jurisdiction  when 44 

Want  of,  and  irregular  exercise  of,  jurisdiction,  distinguished 4.T 

Jurisdiction  at  chambers — In  general 4(i 

Acts  which  may  be  done 47 

Acts  which  may  not  be  done 4  s 

In  Idaho 40 

In  Kansas 50 

In  Montana 51 

Ill  Nevada 50 

In  New  Mexico , 53 

In  Oregon ' 54 

In  Washington 55 

Ouster  of,  and  loss  of,  jurisdiction 56, 


CONSPECTUS.  VU 
CHAPTER  V. 

JUKISDICTION KINDS   OP.  Scction 

In  general ^"^ 

General    jurisdiction 58 

Limited  jurisdiction — Incomplete  and  inadequate  jurisdiction 50 

Original    jurisdiction GO 

Exclusive  jurisdiction 61 

Concurrent  jurisdiction 62 

Conflict  of  jurisdiction 6S 

CHAPTER  VI. 

JURISDICTION — SOURCES  OF. 

In  general "^ 

Legislative  regulation  and  control 6;') 

Power  to  establish  courts 6(5 

New  causes  of  action 67 

Judicial  authority — In  general 68 

Rule  as  to  jurisdiction 6i> 

Elements  of  jurisdiction  twofold 70 

Over  the  subject-matter  of  the  action 71 

Over  the  person  of  the  defendant 72 

Over  the  remedy  or  relief 7S 

Void    proceedings 74 

Voidable   proceedings 75 

Jurisdiction  by  consent  of  parties 76 

CHAPTER  VIT. 

JURISDICTION — OF  STATE  COURTS. 

In  general 77 

Particular  jurisdiction  of  state  courts 7S 

California  courts — Constitutional  jurisdiction 79 

Supreme  Court — Formation  of 80 

Election  and  term  of  office  of  justices 81 

Vacancies:  Disqualification:   Inability  to  act 82 

Jurisdiction  of — Nature  and  extent 83 

■ Appellate  and  original  jurisdiction 84 

Amount  in  controversy 85 

Eules  of  procedure 8(5 

District  Courts  of  Appeal — Nature  of  courts 87 

The  districts,  and  places  of  holding  court 88 

Justices :   term  of  office :   vacancies 89 

Apjiellatc  and  original  jurisdiction 90 

Transfer  of  causes  to  and  from 91 


Vlll  CONSPECTUS. 

Section 

Superior  Courts — Courts  of  general  original  jurisdiction 92 

Election  ami  term  of  office  of  judges 93 

Presiding  justice — Selection  and   duties 94 

Vacancies :    forfeiture  of  office 95 

Holding  court  in  another  county 96 

Judges  pro  tempore 97 

Jurisdiction — In  general 98 

Original  and  appellate  jurisdiction 99 

Amount  in  controversy 100 

Juvenile  Court — Dependent  and  delinquent  children  101 

Jurisdiction    in    specific    classes    of    cases  —  Abatement    of 

nuisance 102 

Divorce  and  annulment 103 

•  Forcible  entry  and  detainer 104 

Fugitives  from  another  state 105 

Lost  record :  presumption 106 

Partition  fence — Recovery  of  value 107 

Person  or  property  in  another  state 108 

Probate  matters 109 

Taxes  and  assessments 110 

Validity  of  election  by  corporation Ill 

Justices'  Courts — Establishment  of 112 

Term  of  office  of  justices:  vacancies:  holding  over 113 

Jurisdiction — In   general 114 

Jurisdiction  must  affirmatively  appear 115 

Title  or  possession  of  real  property  involved — Certifica- 
tion to  Superior  Court 116 

Priority  of  jurisdiction — State  and  federal  courts 117 

CHAPTER  VIII. 

PROCEEDINGS    TO    OBTAIN    JURISDICTION. 

In  general 118 

Definition  of  "process" 119 

Notice  requisite  to  "due  process  of  law" — In  general 120 

Citation — Definition  and  nature 121 

Service  and  return 122 

CHAPTER  IX. 

PBOCEEDINGS   TO   OBTAIN    JURISDICTION THE   SUMMONS. 

1.    Introductory. 

In  general 123 

Amendment  of  complaint ■ 124 

Defective  summons — Cured  by  complaint  when 125 

Alias  and  pluris  summonses 126 


CONSPECTUS.  IX 

S.    Nature  and  Style  of  Summons.  Section 

In  general l'^^ 

Style  of  process  or  summons 128 

S.    Form  and  Contents  of  Summons. 

Contents  of  summons — 1.  Names  of  parties  to  the  action,  etc 129 

Several  persons  parties 130 

Under  Practice  Act,  §  54 131 

Where  plaintiff  ignorant  of  true  name 132 

Where  party  sues  or  is  sued  in  representative  character 133 

Where  new  parties  are  brought  in 134 

Where  personal  representative  brought  in 135 

2.  Direction  to  defendant  to  appear  and  answer 136 

3.  Notice  of  relief  to  be  demanded 137 

In  action  on  contract  for  money  or  damages 138 

In  all  other  actions 339 

In  actions  in  ejectment 140 

In  actions  for  specific  relief 141 

Alternative  relief — ^Wrong  relief 142 

Amending  summons 143 

CHAPTER  X. 

PBOCEEDINGS  TO  OBTAIN  JURISDICTION — SERVICE  OP  PROCESS. 

1.   Introductory. 

In  general ^^^ 

Identity  of  name  and  person 145 

False  name ^*" 

Fictitious  name 147 

"Personal  service"  defined 148 

* '  Duly  served, ' '  meaning  of 149 

Service  actual  performance — Reservice 150 

S.   Authority  or  Capacity  to  Serve. 

In  general 1^1 

By  sheriff — In  general l''^2 

By  his  deputy 1-53 

Effect  of:  Return 354 

Sufficiency  of  return — Several  defendants 155 

False  return— Effect  of 156 

, "Law  of  the  land":    "Due  process  of  law" 157 

Relief   from   false   return  —  1.    In   general:    Kentucky 

statute 158 

■ 2.  Motion  to  vacate  judgment 159 

I 3.  Suit  in  equity  to  vacate  or  enjoin 160 

-.— Conditions  precedent  to  relief 161 

,         — — — —4.  Action  against  sheriff  on  bond 162 


X  CONSPECTUS. 

Section 

Loss  of  right ]  63 

By  person  other  than  sheriff — Atlidavit  of  service 164 

Amendment  of  affidavit 165 

3,    Upon  Whom  Service  To  Be  Made. 

In  general 1 66 

Domestic  corporation 167 

Construction  of  statute — Instances 168 

Foreign  corporation 169 

Construction  of  statute — Instances 170 

' '  Managing  agent " 171 

Foreign  corporation  not  in  business  within  state — Officer  or  agent 

casually  within  state 172 

Municipal  corporation 173 

Infant  or  minor  under  fourteen  years  of  age 174 

Action  by  father  against 175 

Insane  or  otherwise  incompetent  person 176 

Joint  association 177 

Joint  and  several  debtors 178 

Executor  or  administrator 179 

Nonresident  defendant 180 

4.   Mode  of  Service  of  Process  and  Sufficiency  Thereof. 

In  general 181 

Personal  service — In  general 182 

How  made — By  delivery 183 

By  reading 184 

■ By  telegraph 185 

Out  of  jurisdiction 186 

Constructive  or  substituted  service — In  general 187 

1.  By  leaving  copy — Kansas 188 

Oregon   189 

I- tah 190 

Washington 191 

2.  By  mail,  registered  or  otherwise 192 

3.  By  publication — In  general 193 

In  California — In  general 194 

Affidavit  for  order  of  publication — Necessity  for 195 

General  requisites  of 198 

Must  state  probative,  not  ultimate  facts 197 

On  infant  or  minor 198 

Order  of  publication — What  to  contain 199 

; Change  in  summons  not  permissible 200 

Depositing  in  post-office ; 201 

Affidavit  of  depositing  in  mail 202 

Affidavit  of  publication — By  whom  to  be  made 203 

Publication  sufficient  when 204 


CONSPECTUS.  ^ 

Section 

Publication  conclusive  when 205 

Time  within  which  to  appear  after  publication 206 

6.   Time  and  Place  of  Service  of  Summons. 

Time  of  service — In  general 

In  California ^^^ 

On  Sunday ^^^ 

Place  of  service — California  doctrine • 210 

6.   Serving  Copy  of  Complaint  Instead  of  Process:  Copies  With  Process. 

Serving  complaint  instead  of  process 211 

Serving  copy  of  complaint  with  process 21-. 

7.   Service  Procured  by  Fraud. 

In  general " 


CHAPTER  XI. 

PROCEEDINGS  TO  OBTAIN  JURISDICTION — DEFECTS  AND  OBJECTIONS. 

,                                                                                      214 

in  general 

Defects  not  prejudicing  defendant 21o 

Defects  to  which  defendant  may  object 216 

21  7 
In  the  process •  • 

^ In  the  service  of  process  or  proof  of  service— Personal  service  218 

Service  by  publication 219 

Persons  who  mav  object 

•  221 

Necessity  for  objection 

Mode  of  objecting  and  sufficiency  thereof— In  general 222 

993 
By  plea 

.  2''4 

. By  motion 

Time  when  objection  to  be  taken ^-^ 

Quashing  or  setting  aside  process  or  service  thereof— In  general 226 

The  process "" ' 

The  service  of  summons — Personal  service 228 

Service  by  publication --^ 

230 


Amendment  of  defects — In  process 

To  return  of  service  of  process — In  general 231 

Limitation  on  rule 232 

Character  and  scope  of  amendment 233 

. Jurisdiction  can  not  be  conferred  by  amendment 234 

Time  within  which  amendment  may  be  made 235 

Who  may  amend -■'" 

Method  of  amendment 237 


On  notice. 


238 


Waiver  of  defects  and  ob joctions 239 

Curte  by  subsequent  proceedings — Defects  which  may  be  cured 240 

Defects  which  are  not  cured 241 


Xll  CONSPECTUS. 

CHAPTER  XII. 

PBOCEEDINGS   TO  PEOCURE   JURISDICTION — ACCEPTANCE   AND 

WAIVER  OP  SERVICE.  „  ,. 

Section 

Acceptance  or  acknowledgment  of  service — In  general 242 

Collusive  acceptance 243 

Place  of  acceptance 244 

Time  of  acceptance 245 

Must  be  in  writing 246 

Nonresident  defendant • 247 

Proof  of  genuineness  of  signature 248 

Who  may  accept  service 249 

Waiver  of  process  or  of  service  thereof — In  general 250 

What  constitutes  a  waiver 251 

What  does  not  constitute  a  waiver 252' 

Who  may  waive 253 

Who  may  not  waive 254 

CHAPTER  XIII. 

PROCEEDINGS   TO  OBTAIN   JURISDICTION — APPEARANCE. 

In  general 255 

As  to  what  constitutes  appearance 256 

As  to  kinds  of  appearance — In  general 257 

General  appearance — What  constitutes 258- 

A  step  taken  in  the  cause 259 

Motion  in  the  action 260 

On  jurisdictional  grounds 261 

On  other  than  jurisdictional  grounds 262 

Special  appearance — In  general 263 

What  constitutes 264 

When  becomes  general  appearance 265 

Moving  on  nonjurisdictional  grounds 266 

Appearance  by  party — In  general 267 

In  person  or  by  attorney 268 

To  contest  motion 269 

Rights  of  party  appearing 270' 

Appearance  by  attorney — In  general 271 

Authority  of  attorney  to  appear 272 

Signature  of  attorney — No  notice  of:  Proof  of 273- 

Stipulations  of  binding  on  client 274 

Appearance  by  agent,  attorney-in-fact,  etc 275- 

Board   of  education,   etc. :    Suits   by   and   against — Power   to    employ 

counsel  276^ 

Cities:  Suits  by  and  against — PoT\»er  to  employ  counsel 277 

Counties:  Suits  by  and  against — Power  to  employ  counsel 278 

Eminent  domain — Who  may  appear 270 

Escheat  proceedings — Who  may  appear 280 


CONSPECTUS.  Xlll 

Section 

Heirship :  Proceedings  to  determine— Who  may  appear 281 

Husband  and  wife— Appearance  in  suit  against 282 

Infants,  incompetents  or  insane  persons— Appearance  by 283 

Partners :  Suits  by  and  against— Appearance 284 

State:  Suits  by  and  against— Appearance :  Divorce  proceedings 285 

Towns:  Suits  by  and  against— Power  to  employ  counsel 286 

Vessels:  Actions  against— Who  may  appear 287 

Withdrawal  of  appearance — Allowance  and  effect 288 

CHAPTER  XrV. 

NOTICE  OF  LIS  PENDENS. 

In  general ^^^ 

Limited  to  state  courts 290 

Filing  of — Necessity  for 291 

Commencement  of  action  not  notice 292 

Effect  of  failure  to  file 293 

When  to  be  filed 294 

The  notice — What  to  contain 295 

New  notice  necessary  when -96 

Actual  notice— Effect  of 297 

Effect  of  lis  pendens— In  general 298 

Constructive  notice -^^ 


Time  of  commencement 

Property  affected  by — In  general. 


300 
301 

Personal  property ^^-^ 

Actions  to  which  applicable— In  general 303 

Creditors'   suit ^0'* 

Divorce   proceedings ^^"^ 

Ejectment  and  actions  to  quiet  title 306 

Eminent  domain  proceedings 307 

■ Mechanics '   lien  foreclosure 308 

Partition ^^^ 

Replevin  of  personal  property 310 

Tax  suit •^^^ 

Vendor 's  lien  :   Action  to  enforce  notes 312 

Territorial  operation  of 313 

Diligence  in  prosecution  necessary 

Lien  of  judgment  or  decree 

Operation  and  effect — Purchaser  pendente  lite 316 

Purchaser  bound  by  decrees 317 

CHAPTER  XV. 

PLACE  OP  TRIAL — AS  DETERMINED  BY  SUBJECT  OP  ACTION  AND 
NATURE  OF   PROCEEDINGS. 


314 
315 


In  general 

In  any  county  when. 


318 
319 


XIV  CONSPECTUS. 

Section 

Local  and  transitory  actions — In  general 320 

Local  actions 321 

Transitory  actions 322' 

Actions  a£fecting  real  property — In  general 323 

Illustrations  of  local  actions 324 

Action  to  declare  deed  absolute  mortgage:   Redemption 32.> 

Action  to  reform  contract  for  sale  of  land 32(5 

Action  for  specific  performance 327 

Action  to  enforce  trust  in  land 328 

Action  to  foreclose  lien  on  land 329' 

Action  for  trespass  on  land 330 

To  enjoin  threatened  trespass 331 

Suit  for  use  and  occupation 332 

Joinder  of  real  and  personal  actions 333- 

Action  affecting  personalty 334 

Actions  on  contracts — In  general 335 

Under  statute 336- 

In   California 337 

Actions  for  tort — In  general 338 

Under  statute 339' 

Actions  for  penalties  or  forfeitures — In  general 340 

Actions  to  which  applicable 341 

Exceptions  to  the  rule 342: 

Actions  by  and  against  persons  in  representative  capacity — In  general  343 

■ In  California 344 

Actions  against  public  officers 345 

Actions  against  cities,  counties  or  towns — In  general 346 

In   California 347 

Actions  made  local  to  place  of  accrual 348 

Actions  to  be  tried  where  subject-matter  situated — In  general 349^ 

— • —  What  actions  included 350' 

Ancillary  and  incidental  actions 351 

Right  to  sue  in  more  than  one  county — Election 352 

Joinder  of  causes  suable  in  different  counties 353 

Laying  venue 354 

Objections  and  exceptions — In  general 355 

In  California 356' 

Estoppel  and  waiver 357 

CHAPTER  XVL 

PLACE   OF  TRIAL — AS   DETERMINED  BY  DOMICILE  OB  RESIDENCE   OF  PARTIES. 

In  General 358 

In  California 359' 

As  to  rights  of  plaintiffs — In  general • 360 

Coplaintiffs 361 

Right  to  sue  in  different  counties — Election 362. 


JONSPECTUS.  XV 

Section 

As  to  rights  of  defendants— In  general 363 

Makers  and  indorsers :  Principals  and  sureties 364 

Materiality  of  resident  defendant 365 

Misjoinder — In   general 366 

Dismissal  as  to  resident   defendant 367 

Joinder  of  real  and  personal  actions 368 

' '  Domicile  "  or  "  residence ' '  for  purposes  of  action— In  general 369 

In   California 370 

971 

In  other  states "^ 

Of  corporation — In  general 37^- 

In   California 373 

In  other  states — Colorado 374 


Idaho  . . . 
Nebraska 


375 
376 


Oregon ^'_' 

South  Dakota 378 

Utah "^"^ 

Washington 380 

Nonresident  and  absconding  defendants— In  general 381 

. A  nonresident  plaintiff 38- 

Illustrations  of   doctrine ^^^ 

California   doctrine 

385 
Foreign  corporations 

Illustrations  of  prevailing  doctrine 386 

Objections  and  exceptions — In  general 

Estoppel  and  waiver 

CHAPTER  XVIL 

CHANGE  OF  PLACE  OF  TRIAL. 

In  general ^^^ 

Definitions  and  distinctions ^^^ 

Power  of  court  to  change  place  of  trial— In  general 391 

Application  for  change  of  place  of  trial— In  general '. .  392 

As  to  time  of  application 303 

As  to  manner  of  application 3!  4 

. As  to  effect  of  application "^^•*_' 

As  to  causes  of  action  to  which  applicable 3!>(> 

Specific  instances 3'^ ' 

Who  may  apply  for  change — Plaintiffs 308 

Defendants— In   general 309 

Codefendants  must  join "^'^^^ 

Affidavit  of  merits— In  general -^"^^ 

Form  and  sufficiency  of  affidavit •^"- 

Amendment  of  affidavit  of  merits -^"3 

By  one  codel'endant  for  all 

Causes  or  grounds  for  change  of  place  of  trial -l^-^ 


XVI  CONSPECTUS. 

Section 

Counter-motion  to  retain  cause 406 

Demand  for  change  of  place  of  trial 407 

Form  and  statement  in  demand — In  California 408 

■ In  New  York 409 

Affidavits — 1.  Where  ground  nonresidence — Defendant's  affidavits....  410 

Plaintiff's  affidavits 411 

Association  or  corporation — In  California 412 

Plaintiff 's  affidavits 413 

2.  Bias,  partiality  and  prejudice — Moving  affidavits 414 

' —  Amount  of  bias,  partiality  or  prejudice  necessary 415 

Counter-affidavits 416 

3.  For  convenience  of  witnesses — Moving  affidavits 417 

Counter-affidavits   418 

Application  can  be  made  when 419 

Discretion  of  court 420 

4.  Disqualification  of  judge — Supporting  affidavits 421 

In   California 422 

(1)  Party  to  or  interested  in  action 423 

What  interest  disqualifies 424 

(2)  Eelationship  by  affinity  or  consanguinity 425 

Party  includes  whom 426 

Eule  for  determination  of  relationship 427 

(3)  Former  counsel  in  case,  etc 428 

(4)  Bias  and  prejudice  of  presiding  judge 429 

(5)   In  cases  against  reclamation  districts,  etc 430 

Hearing  and  determination  of  application  for  change 431 

Order — Denying  application  for  change 432 

—  Appeal  and  mandamus 433 

Granting  application  for  change 434 

Transfer  of  cause — In  general 435 

Procedure  and  practice 436 


CHAPTER  XVIIL 

REMOVAL  OF  CAUSE. 

In  general 437 

A  statutory  proceeding 433 

Restrictions  on  removal — State  and  federal „ . .  439 

Right  of  removal 44O 

Power  of  removal 44I 

Persons  who  may  remove  action 442 

Time  of  application  for  removal — In  general 443 

On  ground  of  prejudice  or  local  influence 444 

From  what  court • 445 

To  what  court •  445 

Grounds  of  removal — In  general 447 

1.  Diversity  of  citizenship 443 


CONSPECTUS.  XVU 

Section 

2.  Separable  controversy 449 

■  -  3.  Prejudice  or  local  influence 450 

-■  4.  Denial  of  civil  rights 451 

5.  Actions  in  which  federal  question  involved 452 

6.  Actions  against  public  officers,  etc 453 

Effect  of  change  in  parties  after  removal 454 

Amount  in  controversy  as  affecting  removal 455 

Procedure  to  remove — In  general 456 

1.  Notice  of  petition  and  bond 457 

Purpose  and  suflBciency  of  the  notice 458 

2,  Petition  for  removal — In  general 459 

(1)   Averments  as  to  amount  in  controversy 460 

(2)   Averments  as  to  diversity  of  citizenship 461 

(3)   Averments  as  to  alienage 462 

(4)   Averments  as  to  separable  controversy 463 

(5)   Averments  as  to  prejudice  and  local  influence 464 

. (6)   Averments  as  to  denial  of  civil  rights 465 

(7)   Averments  as  to  federal  question 466 

Verification  of  petition  for  removal 467 

Amendment  of  petition  for  removal 468 

3.  Bond  for  removal — Requisites  and  sufficiency  of 469 

4.  Filing  bond  and  petition— Sufiiciency  of  proceeding 470 

. Questions  of  fact— For  federal  court 471 

Questions  of  law — For  state  court 472 

5.  Filing  certified  copy  of  record  in  federal  court 4/3 

6.  Time  to  plead  in  federal  court— Nature  of  plea 474 

Remand  of  cause — In  general 4  ^5 

On  whose  motion — Court 's  own  motion. 476 

On  motion  of  party 477 

Grounds  for  remand — In  general 4(^8 

Causes  remanded  when 4<9 

Causes  not  remanded  when 480 

Time  of  remand '^^^ 

Costs  on  remand 


PART  II. 

ACTIONS. 

CHAPTER  I. 

GROUNDS  OF  ACTION  AND   CONDITIONS  PRECEDENT. 

In  general *^' 

Action  distinguished  from  the  pleading  in  an  action 484 

Action  commenced  when 485 

Action  deemed  ended  when 486 


XVm  CONSPECTUS. 

Section 

Condition  precedent  to  action — In  general 487 

Arbitration  488 

■         Conciliation    489 

Demand  and  refusal — In  general 490 

SuflSciency  of  demand  and  objection 491 

When  demand  not  necessary 492 

Notice   493 

Tender 494 

Sufficiency  of  averments  of 495 

Acts  and  omissions  constituting  cause  of  action — In  general 496 

Act  of  God 497 

Acts  done  with  consent — Volenti  non  fit  injuria 498 

When  principle  does  not  apply 499 

Breach  of  contract 500 

Breach  of  trust 501 

Conspiracy  not  executed 502 

Criminality  of  act 503 

Damages  incident  to  public  improvement  or  work 504 

Declaration  of  right  without  other  relief — In  general 505 

Exceptions  to  the  rule 506 

English  practice 507 

Destruction  of  property  to  prevent  the  spread  of  fire 508 

Exercise  of  lawful  rights  in  use  of  property 509 

Exercise  of  rights  with  bad  intent 510 

Fraud  without  injury 511 

Illegal  or  immoral  contracts 512 

Inducing  breach  of  contract 513 

California   doctrine 514 

Procuring  payment  to  self  of  money  known  to  belong  to  another  515 

Public  injury .• 516 

Perjury  and  subornation  of  perjury 517 

Eight  of  action  as  dependent  upon  relative  values 518 

Trivial  injuries  not  invading  fundamental  right 519 

Frivolous  and  collusive  actions 520 

Unnecessary  and  vexatious  actions 521 

CHAPTER  n. 

CHARACTER  OR   NATURE   OF,    AND   FORMS   OF,   ACTIONS. 

Tn  general 522 

Distinctions  abolished — New  cause  of  action  not  created 523 

■Classification  according  to  nature— ^Real,  personal  and  mixed  actions...  524 

Actions  ex  contractu  and  ex  delicto 525 

Actions  on  express  and  implied  contracts .-. .  526 

JOetermining  character  of  action — Relief  demanded 527 


CONSPECTUS.  2ax 
CHAPTER  III. 
THEORY  OF  THE  CASE.                                     Section 

In  general ^'-^ 

As  to  nature  of  '  *  theory  of  the  case  " 529 

As  to  theory  of  court ^^^ 

Counsel 's  theory  of  the  case — In  general 531 

Necessity  for 53- 

Nature  of  action  and  relief  entitled  to 533 

Effect  of  wrong  theory  is  to  defeat  action 534 

CHAPTER  IV. 

ELECTION   OF  REMEDIES. 

m  general 535 

Definition  and  nature  of  election 536 

•Classes  or  kinds  of  remedies,  as  to  election 537 

Alternative  and  conflicting  remedies 538 

Concurrent  remedies — Definition,  origin,  nature 539 

Concurrent  and  nonconflicting  remedies :  Illustrations 540 

When  election  of  remedies  may  be  required 541 

What  constitutes  election  of  remedies 542 

Time  when  election  to  be  made — Notice  of  election 543 

Conclusiveness  of  election  of  remedies — In  general 544 

Abandonment  or  withdrawal  of  election 545 

Mistake  in  remedy  pursued 546 

Application  of  doctrine  of  election — In  general 547 

Acceptance  of  assets  and  assumption  of  debts  of  partnership. . . .  548 

Approbating  and  reprobating 549 

Attachment  and  replevin 550 

Common-law  and  statutory  remedies 551 

Continuing  nuisance  and  trespass 552 

Contract — In  general 553 

Conditional  sale 554 

Contract  and  fraud 555 

Contract  and  tort 556 

Benefit  received  necessary  to  election 557 

Corporation  without  franchise,  etc 558 

— '■ —  Cotenant  excluded  from  property 559 

Damage  to  real  property 500 

Death  from  negligent  or  wrongful  act — Common-law  rule 561 

Under  statute:  Election 562 

Deposit  wrongfully  paid  to  another 563 

Encroachment  upon  land:  Upon  rights  in  street  or  highway 564 

Ex  contractu  and  ex  delicto  actions 565 

Landlord  and  tenant 566 

Law  and  equity 56  • 


XX  CONSPECTUS. 

Section 

Master  and  servant 568 

Mortgage  and  note 569 

Passenger  injured  through  negligent  or  wrongful  act 570 

Pretermitted  children , .  57  j 

Principal  and  agent 572 

Property  exempt  from  debts — Particular  obligation 573 

Purchaser  at  judicial  or  execution  sale 574 


PART  III. 

PARTIES  TO  ACTIONS. 

CHAPTER  L 

IN   GENERAL. 

Parties  to  an  action — Who  are 575 

Who  are  not  parties 576 

Who  may  not  be  parties 577 

In  legal  actions 578 

In  suits  in  equity 579 

Procedural  codes  adopt  doctrine  of  equity 580 

Cause  of  action  and  what  it  includes 581 

Actions  ex  contractu  and  ex  delicto 582 

CHAPTER  II. 

PARTIES  PLAINTIFF — REAL  PARTY  IN  INTEREST. 

Code  provision 5g3 

Assignment  of  claim 584 

Court  construction — Reason  assigned 58.> 

Who  is  real  pai '  y  in  interest 586 

When  promise  is  for  benefit  of  third  person 587 

CHAPTER  IIL 

PARTIES  PLAINTIFF — IN  ACTIONS  EX   CONTRACTU. 

Plaintiff 's  relation  to  contract — How  may  arise 588 

Entire  cause  of  action  must  be  represented  by  plaintiff 589 

Bringing  in  new  parties 590, 

Joinder  of  plaintiffs — In  general 591 

Death  or  refusal  to  join 592 

Community  of  interest — Test  of _ 593. 

Married  woman  to  be  joined  with  husband — Exceptions 594 

Numerous  parties 595, 

Executors  and  administrators 596. 


CONSPECTUS.  XXI 

Section 

Holders  of  title  under  common  source ^^"^ 

Joint  owners  of  chattels ^9* 

Joint  tenants  and  tenants  in  common 599 

Mortgages  and  mechanics'  liens — Foreclosure 600 

Partners 60^ 

Persons  authorized  by  statute 602 

Principal  and  agent "03 

Promissory  notes — Plaintiffs  in  actions  on 604 

Quo  warranto — Usurpation  of  franchise 605 

Usurpation  of  office 606 

Sheriff— Action  by 607 

State  or  United  States — Actions  by 608 

Suits  against  fire  departments — In  California 609 

Sureties  as  plaintiffs 610 

Trustees  of  an  express  trust — In  land:  Real  party  in  interest 611 

In  "thing  in  action,"  etc.:  Real  party  in  interest 612 

CHAPTER  rV. 

PARTIES  PLAINTIFF — IN  ACTIONS  EX  DELICTO. 

In  general ^^^ 

Joinder  of  parties  plaintiff 614 

Injury  to  and  conversion  of  personal  property 615 

Injury  to  real  property — In  general 616 

As  to  possession  or  title  giving  right  of  action:  Illustrations 617 

• Action  by  tenant 618 

Action  by  tenant  for  years  or  life-tenant 619 

Joinder  of  remainderman  and  tenant 620 

Injuries  to  the  person 621 

Injuries  to  married  women — In  general 62^ 

Under  California  Code 623 

No  limitation  as  to  kinds  of  actions 624 

Injuries  to  minor  child  or  servant — Action  by  parent  or  master 625 

Action  by  minor  or  servant 6^6 

Real  and  mixed  actions — Ejectment 627 

Seduction :  Action  for — At  common  law 628 

Under  procedural  codes — In  general 629 

By  parent,  guardian  or  master 630 

By  unmarried  female 631 

CHAPTER  V. 

PARTIES  DEFENDANT — ACTIONS  EX   CONTRACTU,  EX  DELICTO, 
AND  SUITS  IN  EQUITY. 

In  general — Plaintiffs  can  not  be 632 

At  common  law 633 

Under  procedural  codes — In  general 634 


Xxii  CONSPECTUS. 

Section 

Joinder  of  defendants — In  general 635 

Persons  who  may  be  joined 636 

Persons  who  must  be  joined — In  general 637 

Interest  in  or  title  to  property 638 

Persons  necessary  to  complete  determination 639 

Grounds  for  omitting  or  dispensing  with  parties  defendant 640 

Making  defendants  persons  refusing  to  join  as  plaintiffs 641 

Annulling  patent  to  land 642 

Assessors — In  actions  against 643 

Associations  or  unincorporated  societies 644 

Political   parties 645 

Breach  of  contract 646 

Bringing  in  new  parties — In  general 647 

Necessity  for  and  grounds  of 648 

Jurisdiction  and  authority 649 

Mode  of  bringing  in 650 

Common  or  general  interest 651 

Coparceners 652 

Corporations    653 

Decedent 's  personal  representative 654 

Ejectment   655 

Equity   suits 656 

Executors  and  administrators 657 

Fictitious  parties  defendant 658 

Fraud 659 

In  actions  to  determine  conflicting  claims  to  real  property 660 

Infringement  of  patents 661 

Injunction   662 

Injury  or  death — Of  minor  child  or  ward 663 

Of  person  not  a  minor 664 

Injury  to  property  caused  by  negligent  or  wrongful  act 665 

Interpleader — Conflicting  claimants 666 

Intervention — In  general 667 

Actions  in  which  authorized 668 

Grounds  for  and  time  of  intervention 669 

Application  for  leave  to  intervene:  Proceedings  on 670 

Rights  and  liabilities  of  intervenors 671 

Proceedings  after  intervention ^ 672 

Joint  tenants 673 

Joint  tort-feasors 674 

Legacy  charged  on  land 675 

Married  women — In  general 676 

In  actions  ex  contractu 677 

In  actions  ex  delicto " 678 

Minors  or  infants,  insane  and  incompetent  persons 679 

Misjoinder  of  defendants — In  general 680 

In  suits  in  equity 681 


CONSPECTUS.  XXlll 

Section 

Mortgage  and  mechanics '  Hen  foreclosure 682 

Nonjoinder  of  defendants — In  actions  at  law 683 

In  suits  in  equity 684 

Time  and  mode  of  objecting 685 

Persons  severally  bound  on  same  obligation  or  instrument 686 

Persons  not  bound 687 

Principal  and  agent 688 

Quo  warranto — Parties  plaintiff  and  defendant 689 

Receivers    690 

Specitie  performance — Constructive  trust 691 

Striking  out  defendants — In  general 692 

Persons  who  may  not  be  dismissed 693 

Substitution  of  parties — In  general 694 

Persons  entitled  to  be  substituted 695 

Grounds  for  substitution 696 

Application  for  substitution :  Proceedings  thereon 697 

Mode  of  substitution  of  parties 698 

Proceedings  after  substitution 699 

Tenants  in  common '^^ 

Tort  actions ''^^ 

Trespass '  ^- 

Trustees "^^^ 


PART  IV. 

GENERAL  FUNDAMENTAL  PRINCIPLES 

AND  RULES  OF  PLEADING  IN 

CIVIL  ACTIONS. 

CHAPTER  I. 

GENERAL  PRINCIPLES   AND   RULES. 

In  general '04 

As  to  plan  and  scope 705 

Definition  of  pleadings 706 

Reformed  procedural  pleading — Development  of 707 

Pleadings  allowed 708 

Forms  and  rules  of  pleading — How  prescribed 709 

Entitling  pleadings 710 

Formality  of  statement 711 

Sufficiency  of  statement 712 

Matters  judicially  noticed 713 

Matters  of  conclusion — Of  the  pleader 714 

Legal  conclusions 715 

Pleading  according  to  legal  effect 716 

Pleading  matters  of  evidence 717 


XXIV  CONSPECTUS. 

Section 

Pleading  facts  within  knowledge  of  other  party 718 

Pleading  facts  not  within  knowledge  of  pleader 71  f> 

Pleading  matters  of  record 720 

Pleading  written  instrument 721 

Foreign  document  or  language 722 

Pleading  account 723 

Pleading  judgment 724 

Pleading  conditions  precedent 725 

Pleading  statute  of  limitations 726 

Pleading  private  statute,  municipal  ordinances,  etc 727 

Pleading  surplusage  and  unnecessary  matters 728 

Pleading  description  of  real  property 72ft 

Adopting  allegations  by  reference 730' 

Ambiguity — Nature  of  vice  and  remedy 731 

Argumentativeness  and  inference 732 

Certainty,  directness  and  particularity 733 

Conclusiveness  of  admission  or  allegation  against  party 734 

Consistency  and  repugnancy — Negative  pregnant 735 

Distinctness  and  positiveness 736 

Disjunctive  and  alternative  allegations — Hypothetical  pleading 737 

Erasures  and  interlineations 738 

Falsity  in  pleading — Sham  answers 739' 

Impertinence  and  scandal 740 

Irrelevancy  and  redundancy 741 

Language  used — Abbreviations,  bad  gi-ammar,  clerical  errors,  etc 742 

Material  allegations  not  controverted — Deemed  true 743 

Omission  to  plead — Presumption  therefrom 744 

Pleading  bad  in  part — Effect  of 745 

Variance  and  defects — What  are  and  effect  of 746 

Material  and  immaterial  variances 747 

Illustrations  of  material  variances 748 

Illustrations  of  immaterial  variances 74& 

Advantage  of  variance — How  taken 750- 

CHAPTER  II. 

CONSTEUCTION   OF  PLEADINGS. 

In  general 751 

General  principles  of  construction 752^ 

Meaning  of  words  and  rules  of  grammar • 753 

Popular  meaning  of  words  and  phrases 754 

Illustrations  of  meaning  of  words  and  phrases 755 

Ambiguous  words  and  phrases 756 

Averments  in  pleading  considered,  only , 757 

Technicalities  and  technical  objections 758 

Entire  pleading  to  be  considered 759 

General  and  specific  allegations — Clauses  of  sentence 760 


CONSPECTUS.  XXV 

Section 

Facts  only  to  be  regarded 761 

Eeal  intent  to  be  effectuated 762 

In  Arizona 763 

In  Colorado 764 

In  Idaho 765 

In  Kansas 766 

In  Montana 767 

In  Nevada 768 

In  New  Mexico 769 

In  North  Dakota 770 

In  Oklahoma 771 

In  Oregon 772 

In  South  Dakota 773 

In  Utah 774 

In  Washington 775 

In  Wyoming 776 

CHAPTER  III. 

SUBSCRIPTION  AND  VERIFICATION  OF  PLEADINGS. 

Subscription  of  pleadings — In  general 777 

Sufficiency  of 778 

Verification — In  California 779 

Complaint  based  upon  written  instrument 780 

Defense  founded  upon  written  instrument 781 

Petition  for  perpetuation  of  testimony 782 

Construction  of  statute 783 

As  to  when  answer  may  be  verified 784 

By  whom  pleadings  may  be  verified — In  general 785 

By  one  of  several  parties 786 

By  agent  or  attorney — In  general 787 

Agent  having  possession  of  note  sued  on,  etc 788 

By  attorney — In  general 789 

Grounds  of  belief 790 

Client  absent  from  county,  etc 791 

By  person  not  a  party,  agent,  etc 792 

By  guardian  or  his  attorney 793 

By  officer  or  manager  of  corporation 794 

Before  whom  verification  may  be  taken 795 

Verification  on  information  and  belief 796 

Defective  verification 797 

SufBciency  of  verification 798 

Omission  to  verify — Effect 799 

Subscription  of  verification 800 

Waiver  of  objection  to  verification 801 


XXVI  CONSPECTUS. 

CHAPTER  IV. 

FORMAL  PARTS  OF  PLEADING.  Section 

In  general 802 

Caption  or  title 803^ 

No  part  of  complaint 804 

Omissions — Mistaken  designations 805 

Name  of  court 806 

Name  of  county — Laying  venue  or  place  of  trial 807 

Name  of  parties — In  general 808 

Mistake  in 809' 

Known  and  unknown  parties 810 

Titles  to  be  avoided 811 

CHAPTER  V. 

COMPLAINT — GENERAL  PRINCIPLES. 

I.   Formal  Parts  and  Commencement. 

In  general SI? 

Formal  parts  of  body  of  complaint 813 

Averment  of  character  and  capacity 814 

Action  by  administrator  or  executor 815 

Illustrations  of  sufficiency  and  insufficiency  of  allegations..  816 

Action  by  agent 817 

Action  by  assignee ,  .  .  .  818 

Action  by  company  or  partnership 819 

Action  by  corporation 820 

Action  by  guardian 821 

By   general   guardian 822 

Action  by  trustee  of  an  express  trust 823 

Permission  to  sue 824 

II.   Statement  of  Cause  of  Action. 

In  general 82.> 

Facts  that  must  be  stated 82(> 

Alleging  facts  upon  information  and  belief 827 

Propriety  and  sufficiency  of 828 

Separate  statement  of  causes  of  action 829 

Single  cause  of  action  stated  in  two  counts 830 

Joinder  of  causes  of  action — In  California 831 

■ Causes  of  action  which  can  be  joined 832 

Causes  of  action  which  can  not  be  joined 833 

Action  on  contract  and  for  injury  to  person  or  property,  etc.  834 

Action  for  breach  of  contract  and  for  conversion,  etc 835 

Splitting  causes  of  action  or  demands — In  general 836 

In  actions  ex  contractu 837 

In  actions  ex  delicto 838 

Applications  and  illustrations  of  the  rule 839 


CONSPECTUS.  XXV 11 

Section 

In  action  of  debt— In  general ^^" 

Nature  of  and  when  lies ^'^  ^ 

Indebitatus  assumpsit  or  common  counts 84-2 

In  action  for  breach  of  contract— In  general 84S 

Pleading  the  contract — Methods  of 844 

According  to  legal  effect 845 

Alleging  contract  in  writing 846 

Allegations  as  to  time 847 

Form  of  action — Assumpsit  and  common  counts 848 

Allegation  as  to  promise 849 

Allegation  as  to  consideration 850 

Executed  or  past  consideration — Moral  obligation 851 

Agreement  under  seal 8o2 

Alleging  performance — Conditions  precedent 853 

According  to  intent  of  parties 854 

"Where  plaintiff  bound  to  do  certain  acts 855 

Alleging  nonperformance — Excuse  and  waiver 85t> 

Alleging  concurrent  acts — In  general 857 

Mutuality  at  inception  or  on  contingency 858 

Notice  and  request 85i> 

Tender  of  or  readiness  and  willingness  to  perform 860 

Alleging  breach  of  contract — In  general 861 

Sufficiency  of  allegation— Surplusage 862 

Allegation  of  special  damages 863 

In  actions  for  injuries  resulting  from  negligence— In  general 864 

Negligence  of  plaintiff  preventing  recovery 865 

Allegation  as  to  plaintiff  being  without  fault 866 

Allegations  as  to  various  matters °"  * 

III.   Demand  of  Belief. 

In  general — California  Code  requirement 868 

Alternative  relief 869 

Amount  of  money  or  damages 870 

Legal  and  equitable  relief 871 


CHAPTER  YT. 

DEMURRER IN    GENERAL. 

I.   Defendant's  Demurrer. 

In  general 872 

An  objection  merely — Distinguished  from  a  motion  for  judgment  873 

Speaking  demurrers 874 

As  to  time  when  demurrer  to  be  filed — In  general 87f 

Curing  defects  by  answer 876 

Waiver  of  objections — By  failure  to  demur 877 

— ■ — By  failure  to  obtain  ruling  on  demurrer 878 

By  answering  over 87l> 


XXVlll  CONSPECTUS. 

Section 

Mode  of  taking  objection — In  general 880 

Stating  facts  in  demurrer 881 

What  admitted  by  demurrer 882 

When  demurrer  will  lie 883 

When  demurrer  will  not  lie 884 

What  demurrer  reaches — Defects  in  prayer 8H~> 

Kinds  of  demurrers — In  general 886 

General  demurrer 887 

Breach  of  contract — Nonpayment 888 

Special  demurrer — Common-law  rule 889 

Testing  complaint  by  demurrer — In  general 890 

Sufficiency  and  effect  of  demurrer 891 

Averments  in  pleading  alone  considered 892 

Action  against  garnishee 893 

Action  for  recovery  of  personal  property 894 

Action  for  removing  fixtures 895 

Action  to  annul  homestead 896 

■ Action  to  contest  right  to  purchase  state  lands 897 

Action  to  contest  right  to  mining  claim 898 

Action  to  determine  right  to  patent 899 

■         Allegation  of  damages  in  action  for  personal  injuries 900 

Alleging  mutual  mistake 901 

Allegation  negativing  presumption  of  payment 902 

Allegation  of  probate  of  will :  Ownership 903 

Alleging  unilateral  contract 904 

Failure  to  allege  performance  of  conditions  precedent — Demand.  905 

Injunction — Charging  interference  with  franchise 906 

Reformation  of  instrument — Failure  to  include  property 907 

Specific    performance    of    contract    to    convey  —  Execution    and 

acknowledgment  of  contract 908 

Trust  involved — Constructive  or  resulting 909 

Will  contest — Allegations  necessary 910 

II.   Plaintiff's  Demurrer. 

In  general 911 

CHAPTER  VIL 

DEMURRER — GROUNDS  OP. 

I.    Defendant's  Grounds  of  Demurrer.   ■ 

Grounds  of  demurrer  to  complaint — In  California 912 

Grounds  of  demurrer  must  be  specified 913 

No  other  grounds  of  demurrer ... 914 

1.  Want  of  jurisdiction — In  general 91.3 

Construction  and  application  of  statute.  .',..... 916 

2.  Want  of  legal  capacity  to  sue — In  general 917 

Company — Membership  in 918 


CONSPECTUS.  xxix: 

Section 

Corporation — Incorporation 919 

County — Kejection  of  claim 920 

Foreign  state — Official  representative 9-1 

Guardian  of  infant — Allegation  of  appointment 922 

Note  held  in  trust— Power  to  sell,  not  collect 923 

Receiver — Allegation  of  appointment 924 

Special  administrator — Want  of  capacity  to  sue 925 

Statement  of  grounds— Facts  showing  incapacity 920 

Waiver  of  objection — Failure  to  demur 927 

3.  Another  action  pending  between  the  same  parties — In  general.  928 
Vice  must  be  apparent .                           -  - 9-9 


Foreclosure — In  Nevada 930 

•  Former  adjudication 93 1 

Quieting  title — Ejectment  pending 932 

Receiver 's  judgment — Action  by  party 933 

When  demurrer  lies 934 

4.  Defect  in  or  misjoinder  of  parties — In  general 935 

Nonjoinder  of  parties — Parties  plaintiff 930 

Parties  defendant 93 1 

Objection  taken  how  and  when 938 

Stating  grounds  of  objection 939 


Misjoinder  of  parties— In  general 940 

Parties  plaintiff 941 

Parties  defendant 942 

Form  of  demurrer 943 

5.  Misjoinder  of  causes  of  action:  Failure  to  separately  state 944 

Demurrer  lies  when — In  general 945 

Conversion  of  chattels — Damages  and  restitution 946 

, Claim  sued  in  debt — Fraudulent  conversion  only 947 

Husband  and  wife — Prayer  against  husband 948 

Injuries  to  the  person — Injuries  to  the  property 949 

Mandamus  and   injunction  —  Continuous   statement   of 


facts 


950 


Penalties — Separate  offenses 951 

Recognizance  sued  on — Application  of  property  under 

trust  deed 952 

Separate  liens  for  taxes  or  assessments — Joinder  (Mior.  953 

. —  Sheriff  sued  in  case — Trover  and  conversion 054 

Trespass — Damages  and  value  of  property ^^'^'> 

Causes  of  action  not  separately  stated 950 

Joint  demurrer — When  sufficient 95* 

Objections  taken  how  and  when — In  general 95S 

By  general  demurrer — Not  stating  grounds  of  ol>jecti(iii  059 

By  special  demurrer — Stating  grounds  of  objection.  .  .  .  960 

Waiver  of  objections 961 

. 6.   Complaint  not  stating   facts  constituting  cause   of  action — In 

general 9G2 


XXX  CONSPECTUS. 

(Section 

Demurrer  admits  what 9(53 

Demurrer 's  effect 964 

Action  coininenced  in  wrong  county 905 

Action    prematurely    commenced  —  Objection    taken    at 

trial   966 

Action  founded  on  fraud — Failure  to  allege  facts 9(57 

-• Amended  complaint — Departure  from  original  complaint  968 

Attachment,  alternative  for  body  of  defendant — Action 

against  sheriff 969 

Bill  of  exchange — Joint  demurrer 970 

Claim  against  estate — Failure  to  allege  presentation...  971 

Cloud  on  title — Failure  to  present  cause 972 

Company  or  copartnership — Failure  to  allege  member- 
ship in 973 

Date  of  creation  of  obligation — Illegal  date  assigned..  974 

Defective  complaint — When  vulnerable  to 975 

Defect  of  parties — Euling  pro  forma 976 

Different  from  statutory  terms  used — Sufficiency 977 

Enforcement   of  judgment — Laches 978 

Exhibits  of  matters  of  substance — Demurrer  lies  when  979 

Foreclosure  of  mechanics'  lien — Conclusion  of  law....  980 

Guaranty  basis  of  action — Failure  to  allege  breach. . . .  981 

Inferential   statement — Sufficiency  after  judgment....  982 

Lien  foreclosure — Want  of  dates 983 

Mortgage  foreclosure  against  decedent 's  estate — Pres- 
entation of  claim 984 

Performance  of  condition  precedent — Failure  to  aUege  985 

Quo  warranto^Relator  's  right  to  office 986 

Res  adjudicata — Not  available 987 

Securities  not  promissory  notes — Waiver 988 

Services  of  physician — Lack  of  diploma 989 

Specific  equitable  relief — Remedy  at  law 990 

Stamp  on  note — Failure  to  allege 991 

Statute  of  frauds — Presumption  in  writing 992 

Statute  of  limitations — -Excusing   delay 993 

Statutory  penalty — Rival   ferry 994 

Trespass,  action  for — Plaintiff 's  failure  to  comply  with 

statute 995 

Undertaking — On    attachment 996 

Penal    bonds 997 

Objections  when  and  how  taken — In  general 998 

Statement  of  grounds 999 

7.  Complaint  ambiguous — In  general 1000 

Demurrer  lies  when — Pointing  out  vice.  . . .- 1001 

Action  in  ejectment 1002 

Clerical    errors 1003 

Action  on  official  bond ." 1004 


CONSPECTUS.  XXXI 

Section 

Contradictory  allegations 100-5 

Items  of  account  not  set  forth 1006 

. Notes  of  partnership — Clerical  error 1007 

Time  when  services  rendered 1008 

8.  Complaint  unintelligible I'^Oft 

9.  Complaint  uncertain — In   general 1010 

Demurrer  lies  when — In  general 101 1 

. Action  for  services — Failure  to  set  forth  items 1012 

Action  on  account — Items  not  set  out 1013 

Clerical   error 101* 

Contradictory  allegations ^015 

Damages  for  conversion — Failure  to  describe  property.   1016 

Divorce — Community   property 1017 

Foreclosing  assessment-lien — Failure  to  set  out  date  of 

lien 101« 

Inducement  to  contract— Setting  out 1019 

Items  of  damages  not  stated — Injury  to  premises  and 

business lOlO 

Sale — Purchase   from  agents 1021 

Uncertainty  of   description — Conjunctive   demurrer....    1022 

Statement  of  grounds  of  objection 1023 

II.    Plaintiff's  Grounds  of  Demurrer. 

In  general 10...4 

•Grounds  of  demurrer 1025 

No  other  grounds  of  demurrer 1026 

Sufficiency  of  demurrer — In  general 1027 

In  the  language  of  the  statute 1028 

Where  whole  answer  attacked 1029 

Joint   demurrer 1030 

•Sustaining  demurrer — Effect  of 1031 

Waiver  of  objection — Failure  to  demur,  etc 1032 


CHAPTER  VIII. 

ANSWER — IN   GENERAL:    DEFENSES,   DENIALS,   ETC. 

In  general 1033 

Answer   defined 1034 

Defense  defined — At  common   law 1035 

Under  procedural  codes 1036 

Answer — In    general 103/ 

Inquiries  of  counsel  before  answering 1038 

Formal  parts  of  answer 1039 

Contents  of  body  of  answer — In  California 1040 

Formal  defects  to  be  objected  to  by  answer  when 1041 

Insurance  company's  answer — Peril  excepted 1"12 

Time  in  which  to  answer — After  dcmuiier  disposed  of imj 


XSXU  CONSPECTUS. 

Section 

Id  absence  of  demurrer 1044 

Answer  by  guardian  or  attorney 1045- 

Joint  answer — Effect  of 1046- 

I>ef enses — In  general 1047 

As  to  manner  of  plea 'ling  defenses 1048 

Inconsistent  defenses — California  rule 104&- 

* '  Inconsistent  defenses ' '  defined — ^Limitation  of  rule 1050 

Omission  to  plead  defense — Effect  of 1051 

Sham  defenses — Striking  out 1052^ 

Several  grounds  of  defense — California  rule 1053- 

Special  defenses — Confession  and  avoidance 1054 

Beason  for  the  rule 1055 

Denials — In  general 105& 

Immaterial  issues  need  not  be  denied 1057 

Kinds  of  denials:  As  to  matter — SufBcieney  of  denial 1058 

Geneial  denials — What  provable  under 105^ 

Specific  denials — As  to  what  constitute;  SufBcieney  of 1060 

Kinds  of  denials:  As  to  manner  of  pleading — In  general 1061 

Conjojoetive  denials — Negative  pregnant 1062 

Literal  denials,  or  denials  in  langua  ge  of  complaint — Nega- 
tive picgsant 1063 

On  information  and  belief — In  general 1064 

As  to  "belief" 1065 

As  to  "  information  " 1066 

A ;  to  form  of  denial 1067 

Bule  in  California,  New  York  and  Ohio 1068 

ninstrations  of  insufBcient  forms  of  denial 1069 

As  to  raattera  presumably  within  knowledge 1070 

CotpoEations — ^Aets  of  agents 1071 

B^e-oUeetion  and  belief — ^Personal  acts  and  transactions  1072 

Damagee 1073 

Judgment 1074 

General  denial  allowed  when — In  general 1075 

Of  part  of  complaint 1076 

■ Ef eet  and  form  of  denial — ^In  general 1077 

Form  and  snffideaejr  of  denial 1078 

Defective  denials — ^Effect  of 1079 

Denial  of  eonditioss  preeedent — ^Excuse  for  nonperformance 1080 

Denial  of  deed — On  information  and  belief 1081 

Denial  of  demand 1082 

Denial  of  fiand — ^In   general 1083 

SaSaaeaej  of 1084 

Denial  of  eonrhmions — Of  the  pleader  and  of  legal  condusionB. .   lOSo- 

Ifatteis  that  most  be  pleaded ;   108^ 

Skam,  irreievaBt  and  fiivolotts  denials  and  answers — In  general . .- .   1087 

Mattera  of  etnnplaint  not  well  pleaded .- 1088. 

Amount  of  damages — Denying 108^ 


CONSPECTUS.  XXXIU 

(Section 

Evasive  denials  and  answers 1090 

Admissions   in   answers — Effect   of 1091 

Answer  not  evidenced  for  defendant 1092 

CHAPTER  IX 

ANSWER    (continued) — PLEAS:   GENERAL  AND  SPECIAL. 

In   general 1093 

Pleas    in   abatement 1094 

Pleas  in  avoidance 1095 

Pleas   in    bar 1096 

Special    pleas — As    to    effect    of 1097 

Accord  and  satisfaction — Essential  averments 1098 

What  is  and  when  allowed 1099 

Another  action  pending — As  to  essential  allegations :   Identity  of 

cause  and  parties 1100 

Discontinuance  of,  effect:    Foreign  action  pending 1101 

"What   must   be   shown 1102 

When  defense  does  and  does  not  lie 1103 

Arbitration  and  award — Essential  allegations:    Performance....   1104 

Bankruptcy   or   insolvency — Essential   averments 1105 

Presentation  of  papers — Voluntary  assignment 1106 

What  amounts  to  composition — Pleading 1107 

Credit  unexpired — Essential  allegations 1108 

Death — Action  does  not  abate  when 1109 

After    verdict 1110 

Civil   death 1111 

Of  sole  plaintiff — In  general 1112 

Before    trial 1113 

Before    argument 1114 

One  of  several  plaintiffs — Husband  and  wife 1115 

Of  sole  defendant — In  general 1116 

Before  or  after  judgment 1117 

One  of  several  defendants — In  general 1118 

Death  of  defendant  wife 1119 

Of  appellant 1120 

Suggestion   of   death 1121 

Duress  and  menace — As  to  what  amounts  to 1122 

In  California :   Menace 1123 

Essential   allegations 1124 

Former  judgment — Dismissal  on  merits 1125 

Allegations  essential — As  to  judgment 1126 

As  to  parties 1 127 

Effect  of  former  judgment — In  general 1128 

Where  no  evidence  was  offered 1129 

When  a  bar 1130 

"WTien  not  a  bar 1131 


XXXIV  CONSPECTUS. 

Sect  ion 

When  an  estoppel 1132 

Foreign   adjudication — Essential   allegations 1133 

Fraud — Essential  averments — False  representations 1134 

Infancy  of  defendant — Essential  allegations 1135 

Marriage — Of  plaintiff — Essential  allegations:  Effect  of  divorce.    1136 

Of  defendant — Effect  of:  Charging  separate  estate 1137 

Arbitration  and  award US'* 

Misjoinder  of  parties 1139 

Misnomer — Must  be  pleaded 1140 

Nonjoinder  of  necessary  parties — In  general 1141 

Objection — How  and  when  must  be  taken 1142 

Tenants  in  common 1143 

Payment — How  and  when  must  be  pleaded 1144 

By  note  or  check — Acceptance  of  negotiable  paper 1145 

Release — How  pleaded,  and  effect  of 1146 

Statute  of  frauds — Essential  averments 1147 

Corporations — Acts  ultra  vires 1148 

Statute  of  limitations — California  statute:   "Action" 1149 

■ Application  of  statute 1150 

Construction   of  answer 1151 

Construction  of  statute 1152 

Essential  allegations 1153 

Statutes  of  different  states :   Rule 1154 

Suspension  of  remedy 1155 

When  action  commenced 1156 

When  cause  of  action  accrues 1157 

Tender — Plea  of :  When  and  how  made 1 1 58 

Joinder  of  issue  on  plea  of 1159 

-^ — Want  of  capacity  to  sue — Alien  enemy 1160 

Corporations — Consolidation 1161 

Denial  of  incorporation 1162 

^Dissolution    ' 1163 

Estoppel — In   general 1164 

How  availed  of :   Pleading 1165 

Essential  allegations 1166 

Want  of  consideration — How  pleaded 1167 

Essential  allegations 1168 

Want  of  jurisdiction — Essential  allegations 1169 

CHAPTER  X. 

ANSWEE — NEW   MATTER:    COUNTER-CLAIM,   SET-OFF, 
CROSS-COMPLAINT. 

In  general _  U^q 

Analogy  between  the  present  and  the  former  system 1171 

Exceptions  to  the  rule 117'> 

Matters  within  the  rule  and  required  to  be  set  up 1175 


CONSPECTUS.  XXXV 

Srction 

Xow  maUor — T)ofinition  of ^  ''■* 

Wb:it  constitutes — In   genoriil ^  ^  ■  * 

Matter  not  in  discharge  or  avoidance ll''> 

Prnyer  and  verification  to  answer H '  ' 

Counter-claim — Definition  and  distinction H^"^ 

— ■ —  Nature  and  essential  conditions 1 1 '  ^' 

"Transaction"    defined ll*"^ 

Arising  out  of  contract ^^^^ 

Based  on  contract  in  independent  transaction 1182 

Must  be  specially  pleaded— Essential  allegations 1183 

May  or  may  not  be  set  up  when — In  general 1184 

Joint  and  several  claims ^185 

Election  of  remedy H^'' 

Judgment  on  in  excess  of  plaintiff's  demand 1187 

Kecoupment — As  to  generally 1188 

Set-off— In  general 1^^-^ 

Definition  and  nature:  Pleading 119*^ 

Equitable  defenses  and  sets-off 1191 

Cross-complaint — In  general 1^92 

Definition   of l^-^^' 

Nature  of  cross-complaint 119-t 

1 1  Qt 
In  Montana ^-^"■-' 

In  California — Code  provision 119<> 

Procedure   on   filing ^1^' 

What  is,  and  what  is  not,  a  cross-complaint 119S 

CHAPTER  XL 

AMENDMENT  OP  PLEADINGS. 

In  general ^^^^ 

In  California — Statutory  provisions 1200 

Amended  pleading's  relation  to  original 1201 

Time  of  amending ^-O'-- 

Manner  of  amending — New  cause  not  to  be  stated 1203 

Amending  complaint 1'-*''*^ 

Amending  answer 1205 

Amending  prayer 120b 

Amending  as  to  damages — Complaint  or  prayer 1207 

Amending  to  conform  to  proof 1208 

Refusing  leave  to  amend 120i> 

Procedure  upon  amending  complaint — California  practice 1210 

Demurrer  to  amended  complaint 1211 


CODE  PLEADING  AND  PKACTICE 


PART  I. 

1 

GENEEAL  PRINCIPLES. 

CHAPTER  I. 

introductory. 

1.  In  General. 

§  1.    Purpose  and  plan  of  work. 
§  2.    Remedies  generally. 

2.  Action  and  Cause  of  Action. 

§  3.  Action  defined. 

§  4.  Divisions  of  actions. 

§  5.  Cause  of  action — Nature  and  elements  of, 

§  6.  Damage  without  wrong — Damnum  absque  injuria. 

3.  Special  Proceedings  Not  Actions. 

§  7.    Definition  of  special  proceeding. 

§  8.    Illustrations  as  to  what  are  special  proceedings. 

4.  Provisional  Remedies. 

§  9.    What  proceedings  are. 
§  10.    In  what  consist — Illustrations. 


I  Code  PI.  and  Pr.— 1 


§§1,2  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

1.  In  General. 

§  1.  Purpose  and  plan  of  work.  The  purpose  of  this 
work  is  to  furnish  the  profession  with  a  short  and  reli- 
able treatise  on  Code  Pleading  and  Practice,  founded 
upon  the  California  Code  of  Civil  Procedure,  adapted  to 
use  in,  and  prepared  with  reference  to  the  especial  wants 
of  the  Pacific  Coast  States,  Oklahoma,  and  the  two  Da- 
kotas ;  but  adapted  to  use  in  all  other  states  having  simi- 
lar codes  and  procedure. 

The  method  of  treatment  will  be  in  the  nature  of  A  His- 
tory of  a  Civil  Action,  step  by  step,  as  the  action  pro- 
gresses from  start  to  finish;  something  on  Jurisdiction, 
including  concurrent  and  conflicting  jurisdiction;  with 
especial  attention  to  that  important  matter  in  all  orderly 
and  successful  litigation,  the  Theory  of  the  Case,  which 
determines, — also  to  be  treated — the  Form  of  Ci^dl  Ac- 
tion, whether  regarded  as  at  law  or  in  equity.  Especial 
attention  will  also  be  given  to  Parties  to  an  Action — 
plaintiffs,  defendants,  intervenors ;  to  Venue  and  Place  of 
Trial,  and  to  Removal  of  Cause  to  Federal  Court;  to 
the  Manner  of  Commencing  a  Civil  Action — Process ;  to 
Pleadings,  including  Complaints,  Answers,  Counter- 
claims, Affidavits,  Demurrers  and  Motions.  Especial  at- 
tention to  and  full  treatment  of,  wdll  not  be  given  Special 
Proceedings  and  Provisional  Remedies,  they  not  falling 
v.'ithin  the  scope  of  this  treatise. 

§  2.  Remedies  genee.u.ly.  Redress  for  a  wrong,  or 
prevention  of  an  injury,  is  secured  through  application 
to  a  competent  court  having  jurisdiction  of  the  subject- 
matter  and  of  the  parties,  by  the  person  or  persons  en- 
titled thereto,  in  an  action  or  proceeding  against  the 
offending  person  or  persons,  in  the  form  or  manner  pre- 
scribed by  law.^  To  secure  the  enforcement  qf  all  rights, 
the  redress  of  all  giievances,  and  the  prevention  of  all 

1  Kerr's  Cyc.  Cal.  Code  Civ.   Proc,  §  20.       '  • 

2 


Chl.]  ACTION   AND    CAUSE  OF   ACTIO::.  §3 

wrongs,  under  the  California  Code  of  Civil  Procedure, 
and  under  all  codes  following  that  course  of  practice  or 
civil  procedure,  the  various  remedial  proceedings  in  a 
court  of  justice  are  divided  into :  1.  Actions ;  2.  Special 
Proceedings,  and  3,  Provisional  Remedies.  Under  many 
of  the  codes,  however,  including  the  California  Code  of 
Civil  Procedure,  Provisional  Remedies  are  not  recog- 
nized as  a  separate  di\ision  or  class,  being  regarded  as 
merely  incidental  to  an  action. ^ 

2.  Action  and  Cause  of  Action. 

^  3.  Action  defined.  An  action  is  a  proceeding  in  ju- 
dicio,  in  the  ancient  sense  of  that  phrase ;  that  is,  before 
a  court  and  between  parties,  one  or  both  of  whom  seek  a 
judicium,  in  the  modern  sense  of  rendering  a  judgment 
or  entering  a  decree.  Under  Code  Practice  an  action  is 
the  means  or  method  of  pursuing  and  recovering  one's 
rights,  redressing  a  grievance,  or  preventing  a  wrong, 
and  consists  of  a  proceeding  instituted  by  one  or  more 
persons  against  another  person  or  persons.^    It  may  be 

2  See  Kerr's  Cyc.  Cal.  Code  Civ.  him  in  new  and   somewhat  awk- 

Proc,  §  21.  ward  terms  (Pomeroy  on  Pleading 

1  Kerr's    Cyc.     Cal.    Code    Civ.  and  Practice,  §  453)."     I  know  of 

Proc,  §  22.  no    such    work    as    "Pomeroy    on 

A  different  view  has  been  ex-  Pleading  and  Practice,"  and  a  dili- 
pressed  by  Mr.  Commissioner  gent  search  has  failed  to  disclose 
Smith,  in  the  case  of  Frost  v.  Wit-  the  present  or  former  existence 
ter,  132  Cal.  421,  426,  84  Am,  St.  of  such  a  book.  If  reference  is 
Rep.  53,  64  Pac.  705,  in  which  he  intended  to  be  made  to  John  Xor- 
confounds  "action"  with  "cause  ton  Pomeroy's  "Code  Remedies: 
of  action,"  notwithstanding  his  Remedies  and  Remedial  Rights," 
learned  and  technical  discussion  §  453  of  the  original  edition,  §  347 
of  the  subject,  applying  to  the  for-  of  the  fourth  edition  by  Prof, 
mer  characteristics  which  attach  Bogle,  the  authority  cited  does  not 
to  the  latter  only.  The  learned  warrant  the  conclusion  of  Corn- 
commissioner  seems  to  have  been  missioner  Smith,  being  a  flat- 
misled  into  his  error  through  re-  footed  authority  against  his  pro- 
liance    upon    some    obscure    text-  nunciamento. 

writer,  for  he  says:     "This  is  in  The  above  case  stands  alone,  so 

accordance  with  the  view  of  Mr.  far  as  I  am  able  to  discover,  ex- 

Pomeroy,     though     expressed     by  cept     for    Commissioner    Smith's 


§  4  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

either  ''at  law"  or  "in  equity,"  as  those  branches  of 
the  laAv  are  administered  under  the  codes,  according  to 
the  character  of  the  wrong  or  injury  to  be  remedied  or 
redressed,  and  the  nature  of  the  proceeding  required  to 
secure  that  end.  According  to  the  Civil  Law:  Actiones 
compositae  sunt,  quibus  inter  se  homines  disceptarent- — 
actions  are  formed  as  the  means  by  which  men  may  liti- 
gate with  one  another,  and  the  same  is  true  under  code 
procedure.  As  commonly  used,  the  word  action — whether 
on  the  law  side  or  the  equity  side  of  the  court — includes 
all  the  formal  proceedings  in  a  court  of  justice  attendant 
upon  the  demand  of  a  right,  or  the  prevention  or  redress 
of  a  wrong,  made  by  one  or  more  persons  against  another 
person  or  persons,  including  an  adjudication  upon  the 
demand  and  its  enforcement  or  denial  by  the  court.^ 
Any  ordinary  proceeding  in  a  court  of  justice  by  means 
of  which  one  person  prosecutes  another  for  the  enforce- 
ment or  protection  of  a  right,  or  for  the  prevention  or 
redress  of  a  wrong,  involving  pleading  and  process,  is  an 
action;^  where  the  remedy  is  sought  by  an  application 
directly  to  the  court  for  a  judgment  or  order,  though  in- 
volving a  "hearing"  in  court,  is  not  an  action,  but  a  Spe- 
cial Proceeding.^ 

§  4.  Divisions  of  actions.  There  are  several  general 
division  of  actions.  In  the  wider  sense,  all  actions  are 
divisible  into:  1,  Civil  Actions,  and  2.  Criminal  Actions.^ 
With  the  latter  class  of  actions  there  will  be  no  attempt 
to  deal  in  the  present  treatise.  Civil  actions  may  be  very 

declaration  in  the  subsequent  case  Proc,    §  1049.       See    Naftzger    v. 

of  Hansen  v.  Wagner,  133  Cal.  69,  Gregg,  99  Cal.  83,  88,  37  Am.  St. 

71,  65  Pac.  142,  in  which  he  fol-  Rep.  23,  33  Pac.  757. 

lowed   himself  in  the  above-cited  4Missionary  Soc.  of  M.  E. 

case.     There  are  numerous   adju-  Church,  56  Ohio  St.  405,  47  N.  E. 

dicated  cases  to  the  contrary,  both  537. 

in  this  country  and  in  England. —  5  See,  post,  §•?. 

See,  post,  §  5.  i  Kerr's  •  Cyc.  '  Cal.    Code    Civ. 

2  Dig.  1,  2,  2,  6.  Proc,  §  24. 

"  Kerr's     Cyc.     Cal.     Code     Civ. 


ch.  I.] 


NATURE,   ETC.,  OF   CAUSE  OF  ACTION. 


§5 


appropriately  divided  into :  1.  xVctions  at  Law.  and  2.  .Vc- 
tions  in  Equity, — depending-  upon  whether  the  issues  pre- 
sented are  to  be  determined  by  the  judge  wdien  exercis- 
ing his  ordinary  functions  as  a  judge  under  the  code,  or 
v;hen  exercising  the  chancery  powers  vested  in  the  court 
under  the  simplified  procedure.  As  thus  divided,  actions 
at  law  are  subdivided  into:  1.  Actions  on  an  Obligation, 
and  2.  Actions  for  Injury  -  Actions  on  an  obligation 
subdivide  into:  1,  Actions  on  Express  Contract,  and  2, 
Actions  on  Obligations  Imposed  by  Law.^  Actions  for  an 
injury  subdivide  into:  1,  Actions  for  Injury  to  the  Per- 
son, and  2,  Actions  for  Injur\'  to  Property.^ 

§  5.  Cause  of  action — Nature  and  elements  of.  A 
''cause  of  action"  consists  of  three  essential  elements, 
to-wit:  1,  An  antecedent  primary  right;  2.  A  correspond- 
ing duty  on  the  part  of  another,  and  3.  A  breach  of  the 
right  and  duty  by  a  person  upon  whom  the  duty  rests.^ 


2  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  25. 

:?  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  26. 

4  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  27. 

1  CAL.— McKee  v.  Dodd,  152  Cal. 
637,  125  Am.  St.  Rep.  82,  14  L.  R.  A. 
(N.  S.)  780,  93  Pac.  854.  CONN.— 
Wildman  v.  Wildman,  70  Conn. 
700,  41  Atl.  1;  Goodrich  v.  Alfred, 
72  Conn.  260,  43  Atl.  1041.  IND.— 
Paker  v.  State,  109  Ind.  47,  9  N.  E. 
711;  Davis  v.  State,  119  Ind.  555. 
22  N.  E.  9.  KAN. — Bruner  v.  Mar- 
tin, 76  Kan.  862,  123  Am.  St.  Rep. 
172,  14  L.  R.  A,  (N.  S.)  775,  93 
Pac.  165.  MONT.— Dillon  v.  Great 
Northern  R.  Co.,  38  Mont.  485,  100 
Pac  960;  Cohen  v.  Clark,  44  Mont. 
151,  119  Pac  775.  NEV.— Lewis  v. 
TTyams,  26  Nev.  68,  99  Am.  St, 
Rep.  677,  64  Pac.  126,  64  Pac. 
817.      N.    D.  — Colonial    &    U.    S. 


Mortg.  Co.  V.  Northwestern 
Thresher  Co.,  14  N.  D.  147,  70 
L.  R.  A.  814,  8  Ann.  Cas.  1160,  103 
N.  W.  915  (dissent  of  Mr.  Justice 
Young).  N.  Y.— Veeder  v.  Baker, 
83  N.  Y.  156;  Bucklin  v.  Ford.  5 
Barb.  393;  Meyer  v.  Van  Collen,  7 
Abb.  Pr.  222,  38  Barb.  230.  OHIO— 
Clark  V.  Eddy,  10  Ohio  Dec  539, 
544.  S.  C— Rogers  v.  Mutual  En- 
dowment Assn.,  17  S.  C.  406,  410; 
Suber  v.  Chandler,  18  S.  C.  526, 
530;  Kennerty  v.  Etiwan  Phos- 
phate Co.,  21  S.  C.  226.  53  Am. 
Rep.  669;  Drake  v.  Whaley,  35 
S.  C.  187,  190,  14  S.  E.  397.  UTAH— 
Lawson  v.  Tripp,  34  Utah  28,  95 
Pac.  520;  Soule  v.  Weatherby,  39 
Utah  580,  Ann.  Cas.  1913E,  75,  118 
Pac.  883.  W.  VA.— Harvey  v.  Par- 
kersburg  Ins.  Co.,  37  W.  Va.  272, 
13  S.  E.  580.  FED. — Mercantile 
Trust  and  Deposit  Co.  v.  Roanoke 
&  S.  R.  Co.,  109  Fed.  3,  8.    ENG.— 


§  6  CODE  PLEADING  AND  PRACTICE,  [Pt.  I, 

The  primary  right  and  duty,  and  the  wrong  growing  out 
of  the  breach  of  that  duty,  together  constitute  the  "cause 
of  action, "2  ''Cause  of  action,"  connoting  the  right  a 
party  has  to  institute  a  judicial  proceeding,  is  not  sy- 
nonymous with  the  phrase  "subject  of  action,"  which 
relates  to  the  proceedings  in  which  the  specific  relief  is 
sought,  rather  than  to  the  judgment  or  decree  against  a 
delinquent  or  offending  person;^  and  it  is  likewise  to  be 
distinguished  from  "remedy,"  which  connotes  simply 
the  means  by  which  an  obligation  or  corresponding  ac- 
tion is  enforced,"*  as  well  as  from  the  "relief"  sought  to 
be  obtained,^ 

§  6.    Damage    without    wrong — Damnum   absque 

INJURIA.  To  constitute  a  cause  of  action,  all  the  essential 
elements  enumerated  in  the  preceding  section  must  be 
present.  And  a  complaint  or  petition  which  fails  to  show 
the  presence  of  all  these  elements  touching  some  particu- 
lar right  of  the  plaintiff,  together  with  some  definite 
violation  of  that  right  by  the  defendant  for  which  redress 
may  be  granted,^  does  not  set  forth  a  cause  of  action  ;- 
because  a  cause  of  action  does  not  arise  from  a  damage 
done  unless  there  is  also  a  legal  wrong,^  for  there  must 

Howell  V.  Young,  5  Barn.  &  C.  259,  obligation,  duty,  or  wrong  of  the 

266,  11  Eng.  C.  L.  454,  457;  Doug-  defendant;  and  these  combined,  it 

les  V.  Forrest,  4  Bing.  686,  130  Eng.  is  sufficiently  accurate  to  say,  con- 

Repr.  933;  Jackson  v.  Spitall,  L.  R.  stitute  the  cause  of  action." 

5  C.  P.  542,  552.  3  Stewart  v.  Thompson,  55  Ore. 

See  Dicey  on  Parties  to  Action,  364,  106  Pac.  640,  978. 

p.  8;    Maxwell  on  Code  Pleading,  4  Frost  v.  Witter,  132  Cal.  421, 

p.  97;    Phillips  on  Code  Pleading.  426,   84  Am.  St,   Rep.   53,  64   Pac. 

§§  29-33;    John  Norton    Pomeroy's  705;    Lemon   v.    Hubbard,   10   Cal. 

Remedies    and    Remedial    Rights,  App.  471,  477,  102  Pac.  554. 

§§  452  et  seq.  5  Id.     Hurwitz  v.   Gross,   5   Cal. 

2  McKee  v.  Dodd,  152  Cal.  637,  App.  617,  91  Pac.  110. 

125  Am,  St.   Rep.  82,  14   L.   R.  A.  i  Columbus,   City  of,  v.  Anglin, 

(N.  S.)   780,  93  Pac.  854.  12<J  Ga.  785,  48  S.  E.  318. 

See  Veeder  v.  Baker,  83  N.'  Y.  2  Soule  v.  Weatherby,  39   Utah 

156,  in  which  case  it  is  said,  on  580,  Ann  Cas.  1913E,  75,  118  Pac. 

page  150,  that  "It  is  composed  of  883. 

the  right  of  the  plaintiff  and  the  3  National  Copper  Co.  v.  Minne- 


Ch.  I.]  SPECIAL   PROCEEDINGS  NOT   ACTIONS.  §  7 

exist  a  legal  right  to  prosecute  Avitli  effect^  and  enforce 
such  claim  by  action,^  before  a  cause  of  action  can  be 
said  to  have  arisen.  Where  the  primary  right  of  the 
plaintiff  has  been  invaded  legally,  there  is  no  redress ;  for 
non  omne  damnum  inducit  injuria  has  been  the  rule  since 
the  days  of  Bracton,^  such  damage  being  declared  dam- 
num absque  injuria."^  Thus,  if  a  man  goes  into  business, 
establishes  a  trade,  or  sets  up  a  school  in  a  particular 
place,  and  another  man  does  the  same  thing  in  the  same 
place,  with  the  result  that  he  draws  away  the  business  or 
scholars  from  the  first,  and  thereby  causes  him  to  suffer 
a  loss  in  receipts  or  profits,  there  will  be  loss  or  damage 
to  the  first  person,  without  an  injury  which  the  courts 
can  redress.^  And  where  a  proprietor,  in  the  legal  use  of 
his  premises,  causes  an  unavoidable  loss  to  an  adjoining 
proprietor,  this  Avill  be  damnum  absque  injuria,  for  which 
the  damaged  neighbor  has  no  redress.* 

5.  Special  Proceedings  Not  Actions. 

§  7.  Definition  op  special  proceedings.  The  term 
** special  proceedings"  is  used  in  the  codes  of  reformed 
procedure  in  many  of  the  states  in  contradistinction  to  the 
word  ' '  action, ' '  ^  and  is  a  generic  term  for  all  ci\dl  rem- 

sota  Min.  Co.,  57  Mich.  83,  58  Am.      992,  94  Pac.  1036;  St.  Louis  &  S.  F. 

Rep.  333,  23  N.  W.  781.  R.   Co.   v.  Burrous,    29   Okla.   378, 

4  Douglas  V.  Forrest,  4  Bing.  868,      US  P^c.  143.   See  Gerrish  v.  Union 

130  Ens.  Repr.  933.  Wharf.   26   Me.   384,   46   Am.    Dec. 

568;  Radcliff  v.  Brooklyn,  City  of, 


5  Ayres  v.  Thurston  County,  63 
Neb.  96,  88  N.  W.  178. 


4  N.  Y.  195,  53  Am.  Dec.  357;  Bren- 
ner V.  Atlantic  Dredging  Co.,  134 
0  Bract,  fol.  45b.  ^^   Y.  156,  30  Am.  St.  Rep.  642,  16 

7  National  Copper  Co.  v.  Minne-  l,  r,  a.  561,  31  N.  E.  328;  Gardner 
sota  Min.  Co.,  57  Mich.  83,  58  Am.  y  Heartt,  2  Barb.  (N.  Y.)  165 
Rep.  333,  23  N.  W.  78L  (but  see  reversal  in  1  N.  Y.  528) ; 

8  Keeble  v.  Hockeringall,  3  Salk.  Lester  v.  New  York,  City  of,  79 
10,  91  Eng.  Repr.  659;  3  Bl.  Cora.  Hun  (N.  Y.)  479,  29  N.  Y.  Supp. 
219,  224;   Broom's  Legal  Max.  93.       1000;    affirmed   150  N.   Y.   578,   44 

0  Bellevue,   City  of,  v.   Daly,  14       N.  E.  1125. 
Ida.  545,  125  Am.  St.  Rep.  179,  14  i  In    re    Central    Irr.    Dist.,    117 

Ann.  Gas.  1136,  15  L.  R.  A.  (N.  S.)       Cal.  382,  387,  49  Pac.  354. 


§8 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


edies  in  courts  of  justice  which  are  not  actions,-  where 
the  remedy  is  sought  by  an  original  application  to  the 
court  for  a  judgment  or  order.^  The  term  ''special  pro- 
ceedings" does  not  include  ''Provisional  Remedies," 
either  at  law  or  in  equity,  especially  provided  by  some 
of  the  codes.^  In  the  absence  of  a  clause  in  the  code  cre- 
ating provisional  remedies,  all  proceedings  not  actions, 
are  Special  Proceedings.^ 

■^  8.  Tt.TjTjsteations  as  to  what  aee  special  proceed- 
ings. Illustrations  as  to  what  are  special  proceed- 
ings, the  following  may  be  mentioned:  Admission  of  an 
attorney  to  practice;^  appraisement  hy  commissioners 
of  land  taken  under  exercise  of  power  of  eminent  do- 
main;- arbitration  and  award  is  not  an  action,^  but  an 
adjudication  upon  matters  in  controversy  by  private  indi- 
viduals voluntarily^  selected  by  the  parties,^  the  proceed- 


2  Gwinn  v.  Melvin,  9  Ida.  202, 
108  Am.  St.  Rep.  119,  72  Pac.  961; 
Schuster  v.  Schuster,  84  Minn.  403, 
87  N.  W.  1014. 

SMissionary  Soc.  of  M.  E. 
Church,  56  Ohio  St.  405,  47  N.  E. 
537. 

4  State  V.  District  Court,  28 
Mont.  227,  72  Pac.  613. 

■>  In  re  Joseph's  Estate,  118  Cal. 
660,  50  Pac.  768;  People  v.  Ameri- 
can Loan  &  Trust  Co.,  150  N.  Y. 
117,  3  N.  Y.  Ann.  Cas.  251,  44  N.  E. 
949. 

See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §23;  Mont.  Code  Civ.  Proc. 
1895,  §3472;  N.  C.  Code  (Clark's) 
1900,  §§  126,  127;  N.  D.  Rev.  Codes 
1899,  §§5159,  5160;  Okla.  Rev. 
Stats.  1903,  §§4202,  4203;  S.  C. 
Code  Civ.  Proc.  1902,  §§2,  3. 

1  Cooper,  In  re,  22  N.  Y.  67,  11 
Abb.  Pr.  301,  20  How.  Pr.  1,  re- 
versing Graduates,  In  re,  10  Abb. 
Pr.  (N.  Y.)  357.  19  How.  Pr.  136. 

Determination    final     in    such 


cases. — See  Hovey,  In  re,   7   Cal. 
Unrep,  203,  81  Pac.  1019. 

Committee  appointed  to  exam- 
ine and  license  under  Colorado 
statute. — See  People  v.  Betts,  7 
Colo.  453,  4  Pac.  42;  People  v. 
Carr,  21  Cal.  525,  43  Pac.  128.  See, 
also,  State  v.  Hocker,  39  Fla.  477, 
63  Am.  St.  Rep.  174,  22  So.  721. 

2  New  York  Cent.  R.  Co.  v.  Mar- 
vin, 11  N.  Y.  276,  277. 

3  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §§  1281,  1290.  See  Moore  v. 
Boyer,  42  Ohio  St.  312. 

4  Compulsory  arbitration  not  au- 
thorized.— Bill  Relating  to  Arbi- 
tration, 9  Colo.  629,  21  Pac.  474; 
People  ex  rel.  Baldwin  v.  Haws,  15 
Abb.  Pr.  (N.  Y.)  115,  37  Barb.  440, 
24  How.  Pr.  148,  affirming  13  Abb. 
Pr.  375,  note,  23  How.  Pr.  107;  Cut- 
ler V.  Richley,  151  Pa.  St.  195,  25 

Jtl.  96;  Sobey  v.  Thomas,  37  Wis. 
568. 

5  See  3  Bl.  Com.  16:  3  Steph. 
Com.   374;    Billings  on  Awards   3, 


ch.  I.] 


SPECIAL,   PROCEEDINGS — ILLUSTRATIONS. 


§8 


ings  being  regulated  by  statute;  assessme/nt  of  damages 
on  laying  out  a  public  highway^  or  a  plank-road/  is  a 
special  proceeding  and  not  an  action;  attachment  to  en- 
force judgment,  as  for  a  contempt,  is  a  special  proceed- 
ing;* certiorari  as  a  writ  of  review,^  not  a  writ  of  error, ^'^ 
is  not  an  action,^^  will  not  lie  where  there  is  a  right  of 
appeal  or  other  speedy  and  adequate  remedy  by  law;^- 


55-65;  Russell  on  Arbitration  112; 
2  Am.  &  Eng.  Encyc.  of  L.,  2d  ed., 
p.  638;  3  Cyc.  620;  5  Corpus  Juris 
67,  §137;  2  Rul.  Case  Law  373, 
§21. 

6  See  Lincoln  v.  Colusa  County, 
28  Cal.  662;  Grigsby  v.  Burnett,  31 
Cal.  406;  Kimball  v.  Alameda 
County,  46  Cal.  19,  23;  Wulzen  v. 
San  Francisco  County,  101  Cal.  15, 
26,  40  Am.  St.  Rep.  17,  28,  35  Pac. 
353. 

T  Ransom,  In  re,  3  N,  Y.  Code 
Rep.  148;  Fort  Plain  &  C.  Plank- 
Road  Co.,  In  re,  3  N.  Y.  Code  Rep. 
148;  New  York  Cent.  R.  Co.  v. 
Marvin,  11  N.  Y.  276;  New  York, 
City  of,  Matter  of,  27  N.  Y.  St. 
Rep.  188. 

8  Gray  v.  Cook.  15  Abb.  Pr. 
(N.  Y.)  308. 

9  At  common  law  tries  nothing 
but  jurisdiction. — State  ex  rel.  Bar- 
nett  V.  Fifth  District  Court,  2 
West  Coast  Rep.  630.  And  such 
was  formerly  the  rule  in  Califor- 
nia. See  People  ex  rel.  Whitney 
V.  Board  of  Delegates  S.  F.  Fire 

,^^,  Deptmt.,_14_Cal,  525,  holding  stat- 
'■\J^  ute  merely  confirmatory  of  the 
r  common  law,  overruling  People  ex 

rel.  Church  v.  Hester,  6  Cal.  679. 
But  it  has  since  been  held  that 
under  the  constitution  the  writ  is 
not  a  common-law  writ  (Gorgan  v. 
County  Court,  1  Cal.  Unrep.  617), 
but  a  writ  of  review  (People  ex 
rel.     San     Francisco     v.     County 


Judge,  40  Cal.  47901',  its  office 
being  to  annul,  not  to  restrain. — 
Lamb  v.  Scottler,  54  Cal.  319. 

10  Wetzel  V.  Superior  Court,  3 
Cal.  App.  408,  85  Pac.  858.  See 
Goodman  v.  Superior  Court,  8  Cal. 
App.  233,  96  Pac.  395. 

11  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §§1067,  1068;  Idaho  Rev. 
Stats.  1887,  §4962;  Mont.  Code 
Civ.  Proc,  §  1941. 

Can  not  be  converted  into  an 
action. — People  ex  rel.  Lathrop  v. 
Court  of  Appeals,  33  Colo.  261,  79 
Pac.  1028. 

Washington  statute  (Ballinger  s 
Ann.  Codes  &  Stats.,  §  4793)  makes 
certiorari  a  "civil  action." — State 
ex  rel.  Spokane  Terminal  Co.  v. 
Superior  Court,  40  Wash.  453,  82 
Pac.  878. 

12  People  ex  rel.  Sturgis  v.  Shep- 
ard.  County  Judge.  28  Cal.  115; 
People  ex  rel.  Lamb  v.  Dwinelle, 
Judge,  29  Cal.  632;  Dahlstrom  v. 
Portland  Min.  Co.,  12  Ida.  87,  85 
Pac.  916;  State  ex  rel.  Garissom 
V.  Justice  Court,  31  Mont.  258,  78 
Pac.  498;  State  ex  rel.  Happel  v. 
District  Court,  38  Mont.  166,  129 
Am.  St.  Rep,  636,  35  L.  R.  A. 
(N.  S.)  1098,  99  Pac.  291;  Elmore 
V.  Tillamook  County,  55  Ore.  484, 
114  Pac.  88;  Paige  v.  Commercial 
Nat.  Bank,  38  Utah  440,  112  Pac. 
816.  See  People  ex  rel.  Vander- 
bilt  V.  Stilwell,  19  N.  Y.  531;  On- 
derdonk    v.    Supervisors,    1    Hill 


9 


§8 


CODE  PLEADING  AND  PRACTICE. 


[Pt.I, 


confession  of  judgment  without  action  is  a  special  pro- 
ceeding,^^ and  the  statute  must  be  strictly  pursued  ;^^ 
contempt  proceedings  to  punish  disobedience  of  an  order 
or  judgment  or  requirement  of  a  court,  referee,  and  the 
like,  is  not  an  action,^^  but  a  special  proceeding,^®  and  the 
judgment  or  order  is  not  appealable,^^  unless  made  so  by 
statute  ;^^  contest  of  election  is  a  special  proceeding,^" 
with  an  appeal  to  the  supreme  court,  under  provisions 
of  the  California  constitution;-*^  the  statute  regulating 


(N.  Y.)  195;  Cooper  v.  Kinney,  2 
Hilt.  (N.  Y.)  12,  6  Abb.  Pr.  380; 
People  ex  rel.  Finch  v.  Overseers 
of  Poor,  44  Barb.  (N.  Y.)  467. 

13  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  1132;  but  a  technical  con- 
fession of  judgment  is  contem- 
plated by  this  section. — Siskiyou 
County  Bank  v.  Hoyt,  132  Cal.  85, 
64  Pac.  118;  Levy  v.  Irvine,  134 
Cal.  664,  672,  66  Pac.  953. 

Purpose  and  true  interpretation 
of  code  provision  governing  con- 
fession of  judgment  is  explained 
in  Hopkins  v.  Nelson,  24  N.  Y. 
519,  and  in  Neusbaum  v.  Keim,  24 
N.  Y.  325,  reversing  1  Hilt.  520,  7 
Abb.  Pr.  23. 

14  Chapin  v.  Thompson,  20  Cal. 
681;  Reynolds  v.  Lincoln,  71  Cal. 
163,  184,  9  Pac.  176;  Schuster  v. 
Rader,  13  Colo.  335,  22  Pac.  505; 
Harn  v.  Cole,  20  Okla.  553,  95  Pac. 
415;  Bacon  v.  Raybould,  4  Utah 
359,  10  Pac.  481,  11  Pac.  510;  Utah 
Nat.  Bank  v.  Sears,  13  Utah  172, 
44  Pac.  832. 

Judgment  based  on  insufficient 
statement  not  void  on  its  face 
and  not  attacked  collaterally,  up- 
held in  Lee  v.  Figg,  37  Cal.  337, 
99  Am.  Dec.  274. 

15  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  1209,  enumerating  the  va- 


rious  acts   which   may   constitute 
a  contempt. 

16  As  to  forms  in  proceedings 
for  contempt,  see  Jury's  Adjudi- 
cated Forms,  Forms  Nos.  1159- 
1176. 

17  Brown,  Ex  parte,  3  Ariz.  411, 
77  Pac.  489;  People  v.  Kuhlman, 
118  Cal.  140,  50  Pac.  382;  Witt- 
meier.  Matter  of  Estate  of,  118 
Cal.  255,  50  Pac.  393;  Blodgett  v. 
State,  50  Neb.  121,  69  N.  W.  751; 
Borrer  v.  State  (Tex.),  63  S.  W. 
630;  Drainage  Dist.  No.  1  Kings 
County  v.  Costello,  53  Wash.  67, 
101  Pac.  497. 

18  Judgment  made  appealable  on 
in  following  jurisdictions.  —  See 
Merchant  v,  Pielke,  9  N.  D.  245, 
83  N.  W.  18;  State  ex  rel.  Turner 
v.  Gray,  42  Ore.  261,  70  Pac.  904; 
Hebb  V.  County  Court,  48  W.  Va. 
279,  37  S.  E.  676,  49  W.  Va.  733, 
37  S.  E.  676. 

10  Saunders  v.  Haynes,  13  Cal. 
145;  Stone  v.  Elkins,  24  Cal.  126; 
Keller  v.  Chapman,  34  Cal.  635, 
640;  Lord  v.  Dunster,  79  Cal.  477, 
483,  21  Pac.  865;  Garrard  v.  Gal- 
lagher, 11  Nev.  382. 

Judgment  by  default  can  not  be 
jtaken. — Keller  v.  Chapman,  34  Cal. 
635. 

20  Stone  v.  Elkins,  24  Cal.  125; 


10 


cl..  I.]  SPECIAL   PROCEEDINGS — ILLUSTRATIONS.  §  8 

must  be  strictly  complied  witL,-^  aiid  the  relief  can  not 
exceed  that  authorized  by  the  statute;--  determination  of 
heirship-^  of  claimant  to  property  of  a  decedent's  estate 
is  a  special  proceeding;-^  highway  proceedings  and  pro- 
ceedings to  lay-out  or  vacate  city  streets  are  special  pro- 
ceedings,-^ not  actions;-"  indigent  relations  required  by 
statute  to  be  supported,  proceeding  to  enforce  that  duty 
is  a  special  proceeding ;^^  insolvency  proceedings  are  not 
stricti  juris  either  proceedings  at  law  or  in  equity,-^  but 
a  new  proceeding  or  remedy  created  by  statute  in  the  na- 
ture of  a  special  proceeding ;2^  joint  debtors  proceeded 
against  after  judgment,  the  proceeding  is  in  the  nature 
of  scire  facias  and  doubtless  was  intended  as  a  substi- 
tute therefor  ;^'^  it  is  merely  a  cumulative  remedy,^^  not 
a  new  action,  and  the  party  served  therein  has  no  right  to 
have  the  proceedings  removed  to  a  federal  court  ;^-  ref- 
erees provided  by  statute  are  in  aid  of  the  common-law 
remedy  by  arbitration  and  award, ^^  the  proceedings  being 
on  the  same  principle,"''^  and  does  not  constitute  a  civil 

Dorsey    v.    Barry,    24    Cal.    452;  27  Haviland    v.    White,    7    How. 

Houghton,  Appeal   of,   42   Cal.   62,  Pr.   (N.  Y.)   154. 

68;  Bixler,  Appeal  of,  59  Cal.  555;  2S  Harper  v.  Freelon,  6  Cal.  76; 

Lord  V.  Dunster,  79  Cal.  477,  483,  People    ex    rel.    Grow    v.    Rosen- 

21  Pac.  865;   Thomas  v.  Franklin,  borough,  29  Cal.  415,  418. 

42   Neb.   310,  412,   60   N.  W.   568;  29  Dennery,  In  re,  89  Cal.  101,  26 

Towles.  Ex  parte,  48  Tex.  447,  450.  Pac.  639. 

21  Schwarz  v.  County  Court,  14  30  See  Alden  v.  Clark,  11  How. 
Colo.  44,  49,  23  Pac.  84.  Pr.  (N    Y.)  209,  213, 

22  Garrard  v.  Gallagher,  11  Nev.  31  oean  v.  Eldridge,  29  How.  Pr. 
?.?2,  386.  (I^_  Y.)   218. 

•-'.•5  Kerr's    Cyc.    Cal.    Code    Civ.  32  Fairchild   v.   Durand,   8   Abb. 

Proc,  §  1664.  Pr.  (n_  y.)  305. 

21  Smith   V.    Westfield,    88    Cal.  33  Tyson   v.   Wells,   2   Cal.    122, 

374,  26  Pac.  206;  Burton,  In  re,  93  approved  in  Hadley  v.  Reed,  2  Cal. 

CaL  459,  463,  29  Pac.  36.  322,  325,  holding  report  of  referee 

25  New  York,  The  Bowery,  In  re,  has  same  legal  effect  as  award  of 
2  Abb.  Pr.  (N.  Y.)  368,  12  How.  arbitrators;  it  is  final  so  far  as  he 
Pi".  97.  is   concerned. — See   Cline  v.   Lan- 

26  People    ex    rel.    Disosway    v.  gan,  31  Nev.  244,  101  Pac.  554. 
Flake,  14  How.  Pr,  (N.  Y.)  527.  34  Grayson  v.  Guild,  4  Cal.  122; 

11 


§  8  CODE   PLEADING  AJSTD   PRACTICE.  [Pt.  I, 

action  ;^^  review  or  vacation  of  assessment  levied  by  view- 
ers or  assessors  appointed  to  determine  benefits  under  a 
local  improvement, — e.  g.,  a  sewer, — and  to  apportion  the 
cost  of  construction,  is  not  an  action,^*'  but  a  special  pro- 
ceeding, under  the  code;^"  specific  performajice  of  con- 
tract of  decedent  by  heirs  sought,  the  proceeding  to  com- 
pel is  not  an  action  but  a  special  proceeding  ;^^  submission 
of  controversy  upon  an  agreed  case,^^  is  a  special  pro- 
ceeding and  not  an  action,^*^  and  restricts  consideration 
to  the  facts  admitted  in  the  statement;'*^  supplementary 
proceedings  in  aid  of  execution  are  special  proceedings,^^ 
and  not  in  the  nature  of  an  action,  whether  had  before 
or  after  return  of  execution  unsatisfied,^^  the  design  of 
the  proceeding  being  a  summary  determination  as  to 
property  owned  by  the  judgment  debtor  liable  to  execu- 
tion,^^ but  property  rights  and  the  bona  fides  of  prop- 
erty transactions  can  not  be  determined  in  such  a  pro- 
ceeding,^^ this  requires  pleading  or  issues  joined  on 
action,'*'^  however  order  made  in  can  not  be  collaterally 
attacked;^"  testimony,  perpetuation  of,  under  statute,  is 
not  an  action  but  a  special  proceeding.^^ 

Phelps  V.  Peabody,  7  Cal.  50,  53;  4i  Crandall   v.   Amador   County. 

Burns,  Estate  of,  2  Cof.  Prob.  46.  20     Cal.     72;     Green     v.     Fresno 

35  See  Kerr's  Cyc.  Cal.  Code  Civ.  County,  95   Cal.  329,   334,  30  Pac. 
Proc,   §63G;    also,  Plant  v.  Flem-  544. 

ing,  20  Cal.  92;  and  People  ex  rel.  ■*-  Could  v.  Chapin,  2  N.  Y.  Code 

Disoway    v.    Flake,    14    How.    Pr.  ^^^p.  107,  4  How.  Pr.  185;  Davis  v. 

(N.  Y.)    527.  Turner,  4  How.  Pr.  (N.  Y.)  190. 

36  Porter  v.  Purdy,  29  N   Y   106,  '^  ^°"^^^  ^-  Angell,  72  Cal.  513, 

86  Am.  Dec.  283.  '^^   P^^-  '^^^^ 

■14  Feldenheimer    v.    Tressel,    6 

Dak.  265,  43  N.  W.  94. 

45  Wallace    v.    McLaughlin,    12 
Utah  411,  43  Pac.  109. 
3  8  Hyatt  V.  Seelj^  11  N.  Y.  52.  46  id. 

39  Kerr's    Cyc.    Cal.    Code    Civ.  4-  Schrauth    v.    Dry    Dock    Sav. 
Proc,  §  1138.  Bank,  8  Daly  (N.  Y.)   106. 

40  Lang  V.  Ropke,  8  N.  Y.  Super.  4  s  Kerr's    Cyc.    Cal.    Code    Civ. 
(1  Duer)    701,  702.  Proc,   §§  2083,  2084. 

12 


37  Dodd,  In  re,  27  N.  Y.  629;  Jet 
ter,  Matter  of,  78  N.  Y.  601,  revers- 
ing 14  Hun  93,  55  How.  Pr.  67. 


Ch.  I.]  WHAT   ARE   PROVISIONAL  REMEDIES.  §§  9,  10 

4.  Provisional  Remedies. 

§  9.  What  proceedings  are.  A  x)rovisional  remedy  is 
one  provided  for  a  present  need,  or  for  the  occasion,  and 
adapted  to  meet  a  particular  exigency.^  Provisional  reme- 
dies are  distinguished  from  Special  Proceedings  in  that  a 
provisional  remedy  is  merely  a  collateral  proceeding  or 
remedy,  and  permitted  in  connection  with  a  regularly 
instituted  action,  only,-  as  one  of  its  incidents,-"^  and  is 
auxiliary  thereto  in  that  it  restrains  the  person  or  the 
property  of  the  defendant  until  final  judgment  is  entered 
or  decree  rendered  in  the  action.  An  order  granting  or 
refusing  a  provisional  remedy,  or  an  interlocutory  order 
confirming,  modifjdng  or  sustaining  such  order,  is  review- 
able on  appeal  from  tho  final  judgment  or  decree,  only,'' 
except  in  case  of  injunction,  under  some  statutes  f  but  an 
order  vacating  an  order  granting  a  provisional  remedy 
is  a  final  order  and  appealable,  although  merely  interloc- 
utory in  the  main  proceeding  or  action, — e.  g.,  order  va- 
cating an  order  of  arrest,^  although  there  are  authorities 
to  the  contrary,"^  the  conflict  probably  owing  to  difference 
in  statutory  provisions.  In  Wisconsin,  however,  and  pos- 
sibly elsewhere,  orders  granting  provisional  remedies  are, 
by  statute,  made  appealable  orders.^ 

§  10.  In  WHAT  CONSIST — Illustrations.  A  provisional 
remedy  consists  in  any  proceeding  in  a  ci%dl  action 
pending,  and  usually  before  judgment  or  decree,  in 
courts  exercising  equity  powers,  to   secure  the  person 

1  McCarthy     v.     McCarthy,     54  4  Snavely  v.  Abbott  Buggy  Co., 

How.  Pr.  (N.  Y.)  97,  100,  reversed       36  Kan.  106,  12  Pac.  522. 

on  another  point  in  13  Hun  579.  ^  ^^■ 

»,,-..  -r,  o  6  See  State  v.  Judge  Fifth  Dist. 

2  snavely  v.  Abbott  Buggy  Co  ^^  ^^  ^^^  ^^.  ^^.^.^  ^^^ 

36  Kan.  106,  12  Pac.  522.   See  Wit-  ^.^.^^^  ^^  ^  ^^^^^^^  ^^^  ^  ^   ^^^^ 

ter  V.  Lyon,  34  Wis.  564,  575.  19  S    E    597 

n  Snavely  v.  Abbott  Buggy  Co.,  7  Com.  v.  Fielder,  8  Ky.  L.  Rep. 

36    Kan.    106,    110,    12    Pac.    522;  353;  Clarke  v.  Lourie,  82  N.  Y.  580. 

EUinger  v.   Equitable   Life  Assur.  s  Noonan  v.  Orton,  28  Wis.  386; 

Co.,  125  Wis.  643,  104  N.  W.  811.  Blossom  v.  Ludington,  31  Wis.  282. 

13 


§  10  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

of  the  defendant  and  render  him  amenable  to  any  judg- 
ment or  decree  thereafter  entered  or  made;  or  any  pro- 
ceeding providing  for  the  safety  of  property  and  to  pre- 
serve it  during  the  pendency  of  an  action  or  an  appeal 
from  a  judgment  entered  or  a  decree  made,  or  in  case 
of  perishable  property,  ordering  its  sale  and  the  substi- 
tution of  the  proceeds  of  such  sale  in  the  place  and  stead 
of  the  property,  subject  to  the  final  determination  of  the 
cause  and  the  further  order  of  the  court. 

Provisional  remedies  include,  among  other  things,  ar- 
rest, attachment,  bail,  garnishment,  sequestration,  tempo- 
rary injunction,  temporary  receiver  pending  the  action, 
and  the  like  ;^  but  do  not  include  the  action  of  the  sheriff 
in  approving  the  plaintiff's  undertaking  on  bringing  suit 
or  applying  for  an  arrest  of  the  defendant,-  an  order  of 
the  court  authorizing  substituted  or  constructive  service 
of  summons,^  and  the  like. 

1  Snavely  v.  Abbott  Buggy  Co.,  3  McCarthy  v.  McCarthy,  13  Hun 
36  Kan.  106,  12  Pac.  522.  (N.    Y.)    579,   reversing    54    How. 

2  Nosser  v.  Corwin,  36  How.  Pr.  Pr.  97. 
,(N.  Y.)   540. 


14 


CHAPTER  II. 

GENERAL  FUNDAMENTAL  PEINCIPLES  OF  PLEADING. 

§  11.  In  general. 

§  12.  Purpose  of  chapter. 

§  13.  Pleadings  originally  oral — Now  required  to  be  in  writing. 

§  14.  English  system  of  pleading  exceptional. 

§  15.  Materiality  of  issue. 

§  16.  Certainty  of  issue. 

§  17.  Singleness  of  issue. 

§  18.  Duplicity  and  misjoinder  of  issues. 

§  19.  Common-law  pleading. 

§  20.  The  formal  pleadings  at  common  law. 

§  11.  In  geneeal.  A  lawsuit  has  been  said  to  be  a  ''legal 
battle";  which  is  not  an  inapt  simile.  In  a  lawsuit  as 
much  depends  upon  "strategy"  and  ''position"  as  in  a 
contest  at  arms  upon  the  field  of  battle.  In  speaking  of 
tlie  latter,  General  Garibaldi  has  said  that  "a  bold  onset 
is  half  the  battle";  but  as  regards  the  former,  it  is  the 
better  part  of  valor  to  follow  the  precept  of  Bias  of 
Priene,  who  counsels  to  "be  slow  in  considering,  but  reso- 
lute in  action. ' '  Too  many  attorneys,  because  of  a  mental 
infirmity  or  a  constitutional  indisposition  to  labor,  rush 
into  a  litigation  without  due  consideration  of  the  cause, 
trusting  to  the  court,  or  to  the  opposing  attorney  by 
demurrer,  to  "lick  into  shape"  an  ill-drawn  pleading. 
This  is  always  hazardous.  It  is  worth  while  remembering 
that  an  action  well  begun  is  half  won.  We  shall  see,  in 
later  discussions,  the  importance  of  a  thorough  mastery 
of  the  cause  before  filing  a  pleading,  particularly  in  con- 
nection with  the  treatment  of  Election  of  Remedies,^  the 
Theory  of  the  Case,^  and  in  the  discussion  of  the  form  of 

1  See,  post,  §§  535-574.  2  See,  post,  §§  528-534. 

15 


§§  12,  13         CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

the  pleading.^  If  the  pleader  wishes  to  avail  himself  and 
his  client  of  the  advantages  opposition"  and  "strategy" 
in  the  trial  of  the  cause,  he  must  draw  his  pleading  with 
circumspection ;  and  this  can  be  done  only  by  a  previous 
thorough  mastery  of  the  facts  in  the  case  and  the  rules  of 
law  applicable  to  the  various  ''angles"  that  may  be  given 
to  the  cause  on  the  facts,  and  must  select  the  angle  that 
^\dll  be  most  advantageous  to  his  side.  In  other  words,  he 
must  select  the  ** field  of  battle,"  and  not  leave  it  to  chance 
or  to  his  adversary — else  he  may  find  w^hen  he  comes  to 
the  contest  that  he  "has  the  sun  in  his  eyes." 

§  12.  Purpose  of  chaptee.  The  pleadings,^  both  of 
plaintiff-  and  defendant,^  will  be  considered  systemati- 
cally later  on  in  this  treatise.  It  is  the  purpose  to  set  out 
in  this  place  some  of  the  preliminary  matters  and  refer  to 
the  fundamental  principles  or  rules  governing  pleading 
generally,  which  should  always  be  followed  in  courts  of 
record,  ha\dng  been  found  by  experience  to  be  requisite  to 
the  best  results,  and  for  that  reason  are  required  to  be 
observed  by  procedural  statutes  and  rules  of  court,  found 
in  decisions  or  formally  prescribed.  The  decisions  of  the 
courts  of  the  various  states  covered  by  this  treatise  mil 
be  collected  under  the  appropriate  sections  in  Part  IV  of 
this  treatise. 

§  13.  Pleadings  originally  oral — Now  required  to  be 
IN  writing.  In  the  twilight  of  English  jurisprudence,  all 
pleas  were  oral.^     Until  some  time  during  the  reign  of 

3  See,  post,  §§  704  et  seq.  (see,  post,  §  14)  in  that  the  parties 

1  See,  post,  §§  20,  704-750.  were   not  required   to  present  an 

2  See,    post.    Part    IV,    ehs,  IV      "issue."    But  in  all  these  nations, 
and    V.  at  an   early   date,    the   Civil   Law 

3  See,  post,  Id.,  chs.  V-IX.  was  made  the  basis  of  judicature, 
1  Oral     pleadings     prevailed    in      and    written    pleadings    took    the 

courts  of  record  in  the  various  na-  place  of  oral,  and  the  form  of  trial 
tions  on  the  continent  of  Europe  was  by  the  judge  himself,  without 
in  their  ancient  systems  of  judica-  the  assistance  of  a  jury.  —  See 
ture,  but  in  all  these  nations  dif-  Domat's  Civil  Law,  vol.  II,  bk.  11;/ 
fered    from    the    English    system      Fortescue  de  Laud,  ch.  20;   J.  G. 

16 


ch.  II.] 


ORAL   PLEADINGS. 


§13 


Edward  III^ — a  great  period  in  English  history  and  the 
development  of  the  rules  of  the  common  law — upon  the 
answer-day,  the  parties  were  required  to  appear  in  court 
and  state  orally  their  respective  contentions  or  claims, 
which  statements  and  claims  were  contemporaneously  en- 
tered upon  the  court  record  of  the  cause,  and  these  oral 
statements  thus  entered  constituted  ''the  issue"  in  the 
cause.2  Qy^I  pleadings  are  no  longer  permitted  in  courts 
of  record,  either  in  England  or  in  this  country.'*    In  the 


Heineco,  Elem.  Jur.  Germ.,  lib.  II, 
tit.  IV,  §  clviii. 

2  In  Stephen's  "Principles  of 
Pleading  in  Civil  Actions,"  the  era 
at  or  in  which  the  manner  of 
allegation  in  pleadings  was  first 
methodically  formed  and  culti- 
vated as  a  science,  and  required 
to  be  in  writing,  is  placed  in  the 
reign  of  Edward  I. — See  p.  135. 

Early  authorities,  for  such  as 
wish  to  look  more  minutely  into 
this  subject,  will  be  found  in  the 
treatise  of  Glanville  (in  time  of 
Henry  II),  Bracton  (latter  end  of 
reign  of  Henry  III),  and  Placi- 
tarum  Abbreviate  (from  Richard  I 
to  Henry  II).  According  to  Reeves, 
the  Mirror  of  Justice  can  not  be 
relied  upon  for  any  period  prior 
to  Edward  I. — See  2  Reeves'  Hist. 
Eng.  Com.  Law,  p.  359. 

3  The  issue,  as  defined  by  Lord 
Coke,  consists  in  "a  single,  certain, 
and  material  point,  issuing  out  of 
the  allegations  or  pleas  of  the 
plaintiff  and  defendant,  consisting 
regularly  upon  an  affirmative  and 
negative,  to  be  tried  by  twelve 
men."— Co.  Lit.  126.  For  other 
definitibns,  see  3  Bl.  Com.  313; 
Heath's  Maxims,  ch.  IV,  and 
Finch's  Law,  396. 

This   definition   followed    in   the 
American    cases.  —  See,    among 
1  Code  PI.  and  Pr.— 2 


Other  cases:  Leach  v.  Pierce,  93 
Cal.  614,  619,  29  Pac.  235;  Seller  v. 
Jenkins,  97  Ind.  430,  438;  McDer- 
mott  V.  Halleck,  65  Kan.  403,  69 
Pac.  335;  Marshall  v.  Haney,  9 
Gill  (Md.)  251,  258;  Barth  v.  Ro- 
senfeld,  36  Md.  604,  617;  Richard- 
son V.  Smith,  80  Md.  94,  30  Atl. 
570;  Hays  v.  Hays,  23  Wend. 
(N.  Y.)  363,  370;  People  v.  Slau- 
son,  85  App.  Div.  166,  83  N.  Y. 
Supp.  107,  17  N.  Y.  Cr.  Rep.  427: 
Riggs  v.  Chapin,  7  N.  Y.  Supp.  765, 
767;  Hume  v.  Woodruff,  26  Ore. 
373,  38  Pac.  191;  New  York  &  T. 
Land  Co.  v.  Votaw,  16  Tex.  Civ. 
App.  585,  42  S.  W.  138;  Hong  Sling 
V.  Scottish  Union  &  Nat.  Ins.  Co., 
7  Utah  441,  27  Pac.  170;  First  Nat. 
Bank  v.  Swan,  3  Wyo.  356,  23  Pac. 
473. 

No  written  pleading  or  denial 
controverting  the  allegations  of 
the  complaint,  declaration,  or  pe- 
tition, there  is  no  issue. — White  v. 
Emblem,  43  W.  Va.  819,  28  S.  E. 
761. 

See  discussion,  post,  §  743. 

4  See  Avon  Mfg.  Co.  v.  Andrews, 
30  Conn.  476,  488,  and  White  v. 
Emblem,  43  W.  Va.  819,  28  S.  E. 
761. 

Exceptions  to  general  rule  are 
found.  Thus,  in  these  cases  in 
which  a  supplemental  pleading  is 


17 


§14 


CODE   PLEADING  AND   PRACTICE. 


[Pt.  I, 


Code  states,  all  pleadings  are  especially  required  to  be  in 
writing,  in  causes  in  courts  of  record.  The  object  souglit 
to  be  attained  by  means  of  written  pleadings  is  the  same 
as  in  oral  pleading — i.  e.,  to  bring  out  clearly,  divorced 
from  extraneous  matter,  the  single  point  or  points  of  law^ 
or  fact  forming  the  *  *  issue  "  to  be  submitted. 

§  14.  English  system  of  pleading  exceptional.  The 
English  system  of  pleading,  which  is  followed  in  this  coun- 
try, though  in  a  much  simplified  form,  especially  in  the 
Code  states, — so  conducted  as  always  to  evolve  a  single 
question  or  questions  growing  out  of  the  same  claim  or 
transaction,  either  of  law  or  of  fact,  disputed  between  the 
parties  litigant,  and  mutually  proposed  and  accepted  by 
them  as  the  subject  for  the  consideration  and  decision  of 
the  court,^ — stands  alone  in  judicature,  the  like  not  ap- 


filed,  by  leave  of  court,  setting  up 
a  counter-claim  and  insulTicient 
matter  for  abating  a  suit  regularly- 
assigned  for  trial  and  coming  on 
to  be  tried  before  the  filing  of 
such  supplemental  pleading,  the 
court,  in  response  to  inquiry  by 
counsel  for  plaintiff,  having  stated 
that  a  demurrer  to  the  counter- 
claim would  be  sustained  when 
filed,  the  trial  may  proceed  on  oral 
demurrer  without  a  written  de- 
murrer to  the  counter-claim  being 
first  filed. — Veysey  v.  Bernard,  49 
Wash.  571,  95  Pac.  1096. 

See,  also,  Cowen  Co.  v.  Houck 
Mfg.  Co.,  249  Fed.  285,  for  an  in- 
stance in  which  the  cause  was  not 
tried  u'jon  the  w-ritten  pleadings 
served  and  filed  in  the  case,  but 
upon  what  amounted  to  oral 
pleadings  made  shortly  after  the 
trial  began,  upon  the  insistence  by 
the  trial  court  that  the  issues  be 
simplified. 


Oral  denial  by  one  party  of  a 
written  allegation  of  the  other 
party  to  an  action  does  not  form 
an  issue. — Avon  Mfg.  Co.  v.  An- 
drews, 30  Conn.  476,  488. 

5  Issues  involved  may  be  more 
than  one. — See,  post,  §  17. 

1  In  American  judicature  the 
object  of  the  pleadings  of  the  par- 
ties is  the  same  as  at  common 
law. — See  Lubert  v.  Chauviteau,  3 
Cal.  458,  58  Am.  Dec.  415;  Magwire 
V.  Tyler,  47  Mo.  115;  Parsley  v. 
Nicholson,  65  N.  C.  210. 

Mr.  Chief  Justice  Waite  said: 
"The  office  of  pleading  is  to  inform 
the  court  and  the  parties  of  the 
facts  in  issue;  the  court,  that  it 
may  declare  the  law,  and  the  par- 
ties that  they  may  know  what  to 
meet  by  their  proof." — Hill  v. 
Mendenhall,  88  U.  S.  (21  Wall.) 
453,  455,  22  L.  Ed.  616.  See,  also, 
language  of  Mf.  Justice  Swayne  in 
United  States  v.  Grlmore,  74  U.  S. 
(7  Wall.)  491,  494,  19  L.  Ed.  282. 


18 


ell.  II.]  MATERL\X,ITY  OF  ISSUE.  §  15 

pearing  in  any  other  system.^  This  distinctive  peculiarity 
is  most  marked  in  the  fact  that  the  issue  to  be  tried  is  fully 
framed  and  presented  before  the  court  takes  up  the  cause. 
In  any  system  of  judicature  the  ''issue"  must  of  course 
be  fully  developed  before  the  court  can  arrive  at  a  deci- 
sion. In  other  systems  of  judicature  the  parties  litigant 
are  permitted  to  make  rambling  statements  "at  large," 
without  any  effort  to  bring  out  and  present  the  exact 
matter  in  controversy, — the  point  or  points  to  be  decided. 
To  arrive  at  the  point  or  issue  the  court,  before  proceed- 
ing to  a  decision,  must  collate,  consider  and  review  the 
opposed  effect  of  the  different  statements  of  the  parties 
litigant;  i.  e.,  must  distinguish  and  extract  the  points 
mutually  admitted,  as  well  as  those  undisputed  points 
which  are  immaterial,  thereby  arriving  at  the  point  in 
dispute  which  is  to  be  decided.  In  yet  other  systems  of 
judicature  the  point  for  decision  is  selected  from  the 
pleadings  by  the  trial  judge,  or  by  a  court  officer,  and  this 
''issue"  promulgated  before  the  trial  and  proof  by  the 
respective  parties.^  The  advantage  of  the  English  system 
of  pleading,  in  which  the  parties  litigant  themselves,  by 
the  allegations  in  their  respective  pleadings,  develop  and 
present  the  point  or  issue  to  be  tried,  is  manifest  without 
comment.''  This  distinctive  feature  of  the  English  system 
requiring  the  parties  to  present  the  point  or  issue  to  be 
adjudicated,  doubtless  had  its  rise  in  the  early  practice 
of  oral  pleading.^ 

§  15.  Materiality  of  issue.  The  pleadings  are  required 
not  only  to  present  an  issue,  but  it  must  be  one  appropri- 
ate to  be,  or  necessary  to  be,  considered  and  detennined 
in  rendering  full  and  complete  justice  in  the  cause.     In 

2  See  Stephen  on  Pleading  (Wil-  Swayne,  J.,  in  United  States  v.  Gil- 
litson's  ed.),  p.  136.  more,  74  U.  S.  (7  Wall.)   491,  494, 

3  Id.,  p.  138.  19  L.  Ed.  282,  283. 

4  "The   value   of  the   system,   in  "^  As  to  oral  plead 'ng  in  courts  of 
the  administration  of  justice,  can  record,  see,  ante,  §  13  and  notes, 
hardly  be  too  highly  estimated." — 

19 


U6 


CODE  PLEADING  AND  PRACTICE. 


[pt.  r, 


other  words,  tlie  issue  presented  must  be  material.  Wlicic 
an  issue  presented  is  immaterial  it  may  be  ignored,^  or 
stricken  out-  on  motion  or  demurrer ;  it  is  not  required  to 
be  answered,  and  should  not  be  answered,  liecause  to  an- 
swer tends  to  promote  the  evils  of  confusion,  prolixity 
and  delay.^ 

§  16,  Certainty  of  issue.  It  is  essential  not  only  that 
the  issue  presented  shall  be  a  material  one,  but  it  must 
be  presented  with  certainty  and  precision  ;^  such  certainty 
and  precision  as  mil  show  distinctly  both  time  and  place- 
facts  proved  before  them  by  the 
parties  litigant,  as  is  the  case  in 
jury  trials  with  us,  but  their  testi- 
mony as  to  facts  antecedently 
known  to  them. — See  2  Reeves' 
Hist.  Eng.  Com.  Law,  p.  270. 


1  Immaterial  or  irrelevant  allega- 
tion is  one  which  does  not  relate 
to  or  affect  the  matter  in  contro- 
versy.—E.  D.  Metcalf  Co.  v.  Gil- 
bert, 19  Wyo.  331,  116  Pac.  1017; 
Morton  v.  Jackson,  2  Minn.  219. 

2  Irrelevant  matter  may  be 
stricken  out. — Green  v.  Palmer,  15 
Cal.  411,  76  Am.  Dec.  492;  Bowen 
v.  Aubrey,  22  Cal.  566,  569;  Wil- 
son V.  Cleveland,  30  Cal.  192,  200, 
89  Am.  Dec.  85. 

a  See,  post,  §  16. 

1  See  Bracton,  431a. 

Modern  English  reasons  for  cer- 
tainty and  precision  in  pleadings 
are  set  forth,  among  other  cases, 
in  the  following:  Holmes  v.  Cats- 
by,  1  Taunt.  543,  127  Eng.  Repr. 
944;  J'Anson  v.  Stuart,  1  T.  R. 
748,  99  Eng.  Repr.  1357;  and  Col- 
lett  v.  Keith,  2  East  260,  102  Eng. 
Repr.  368. 

-'Certainty  and  precision  re- 
quired in  pleading  had  their  origin, 
doubtless,  in  the  nature  of  the 
original  constitution  of  trial  by 
jury,  under  which  the  jury  con- 
sisted of  persons  who  were  wit- 
nesses to  the  facts,  or  in  some 
measure  personally  cognizant  of 
them,  and  who  gave  as  their  ver- 
dict, not  their  judgment  as  to  the 


The  venire  facias  issued  for 
summoning  the  jury  under  this 
system  of  trial  by  jury,  directed 
that  the  jurors  be  summoned  from 
the  immediate  neighborhood  where 
the  facts  or  transaction  occurred, 
and  from  the  persons  who  best 
knew  the  truth  of  the  matter  (Ste- 
phen on  Pleading,  p.  147).  To  en- 
able the  sheriff  to  perform  his 
duty  in  summoning  the  jury,  the 
venire  facias  was  required  to  state 
fully  the  nature  of  the  issue  (Brac- 
ton 309b,  310a,  etc.)  with  sufficient 
certainty  to  show  specifically  the 
question  of  fact  to  be  tried,  and  to 
accomplish  this  both  the  place 
where  and  the  time  when  the  al- 
leged transaction  or  acts  occurred 
were  required  to  be  set  out,  to- 
gether with  such  other  particulars 
as  would  be  sufficient  to  guide  the 
sheriff  in  summoning  the  jury. 
Other  reasons-  may  have  entered 
into  the  requirements  as  to  clear- 
ness, certainty,  and  precision  in 
the  pleadings. — See  Bracton,  431a. 


20 


ell.  II.]  SINGLENESS  OF  ISSUE.  §  17 

of  the  act  or  transaction  involved,  and  also  wlietlier  the 
point  involved  is  one  of  law  or  fact.  The  issue  as  pre- 
sented must  clearly  show  the  nature  of  the  act  or  transac- 
tion, and  disclose  by  what  form  of  trial  it  should  be 
determined"— by  court  or  jury,  in  law  or  in  equity.  Ste- 
phen well  says  that  the  chief  objects  of  pleadings  are : 
(1)  to  bring  the  litigating  parties  to  an  issue;  (2)  to 
secure  an  issue  which  shall  be  material,  single  and  certain 
in  its  quality,  and  (3)  to  avoid  obscurity,  confusion,  pro- 
lixity and  delay.^ 

<§  17.  Singleness  of  issue.  We  have  seen  above  that 
the  object  of  the  pleadings  at  common  law,  whether  they 
were  oral  or  written,  was  to  develop  a  single  issue  be- 
tween the  parties  litigant.  This  is  the  general  rule ;  but 
there  were  exceptions  to  it,  under  which  exceptions  it  was 
permissible  to  present  two  or  more  points  or  issues  in 
one  action  for  the  consideration  and  determination  of  the 
court.  This  exception  arose  in  those  cases,  only,  in  which 
the  nature  of  the  controversy  admitted  of  more  than  one 
question  fit  to  be  determined  by  the  action;  that  is,  in 
those  cases  in  which  the  action  tended  to  more  than  one 
material  issue.  Thus,  where  the  action  was  founded  upon 
two  or  more  separate  demands,  there  might  be  separate 
and  distinct  issues  applicable  to  each  demand,  and  com- 
plete justice  require  that  all  these  issues  should  be  raised 
and  decided,  and  the  entire  matter  determined  and  dis- 
posed of  in  one  proceeding.  Where  but  a  single  claim 
was  presented,  however,  and  the  decision  of  any  one  of 
two  or  more  material  issues  that  might  be  raised  would 
effectually  dispose  of  the  cause  and  complete  justice  be 
done,  the  exception  did  not  apply,  and  the  general  rule 
prevailed. 

3  See  R.  V.  Cooke,  2  Barn  &  C.         4  Stephen  on  Principles  of  Plead- 
871,   9   Eng.    C.   L.    375,    107    Eng.      ing  in  Civil  Actions,  p.  148. 
Repr.  605. 

21 


§§  18,  19         CODE  PLEADING  AND  PRACTICE,  [Pt.  I, 

§  18.  Duplicity  and  misjoinder  of  issues.  In  those 
cases  in  which  there  is  but  one  subject  of  suit,  a  multi- 
plicity of  issues  will  constitute  the  vice  of  duplicity  and 
misjoinder  of  issues/  which  topics  will  be  fully  treated, 
and  the  cases  cited,  in  Part  IV  of  this  treatise. 

§  19.  CoMMON-LAw  PLEADING.  Tlic  systcm  of  commou- 
law  pleading,  upon  which  the  American  systems  of  plead- 
ing were  founded,  was  highly  formal,  technical  and 
verbose.  The  pleader  was  required  to  determine  with 
certainty  before  dramng  his  declaration  or  bill  whether 
the  nature  of  the  cause  he  presented  was  an  action  at  law 
or  a  suit  in  equity — each  class  of  proceedings  having  its 
own  peculiar  rules  of  pleading;^  if  he  erred  in  this  respect 
in  his  judgment  the  cause  was  thrown  out  of  court,  and 
he  was  compelled  to  commence  over  again — if  an  inter- 
vening statute  of  limitation  did  not  cut  off  the  right  of  his 
client  to  maintain  an  action.  This  same  formality  and 
technicality,  but  relieved  of  much  of  the  verbosity,  was 
carried  into  the  system  of  judicature  of  some  of  the  states 
of  the  Union,  with  a  like  duty  imposed  on  the  pleader  to 
pre-determine  with  certainty  whether  the  cause  is  an 
action  at  law  or  a  suit  in  equity,  with  a  like  disaster  for 
any  error  of  judgment  in  this  regard.     Particularly  is 

1  As  to  misjoinder  of  issues  un-  The  ability  to  understand  what  is 

der    the    English    or    common-law  the  appropriate  remedy  and  relief 

system  of  pleading,  see  Wigley  v.  for    the    case;    to    shape    the    bill 

Ashton,  3  Barn.  &  Aid.  101,  5  Eng.  ^"1^^'  accurately  and  neatly,  with- 

C.   L.   67,   106  Eng.  Repr.   600,   22  °"t  deforming  it  by  loose  and  im- 

Rev    ReD    ''16  material  allegations  or  loading  it 

with    superfluous    details,    and    to 

1  Equity  pleading  has  been  char-  ^je^ide  who  are  the  proper  and 
acteiized  by  Judge  Story  as  "a  necessary  parties  to  the  suit— the 
science  of  great  complexity,  and  ability  to  do  all  this  requires  vari- 
a  very  refined  species  of  logic,  ous  talents,  long  experience,  vast 
which  it  requires  great  talent  to  learning  and  a  clearness  and  as- 
master  in  all  its  various  distinc-  tuteness  of  perception  which  be- 
tions  and  subtle  contrivances,  and  long  only  to  very  gifted  minds." — 
to  apply  it,  with  any  sound  discre-  Story  on  Equity  Pleading,  §  13. 
tion  and  judgment,  to  all  the  diver-  See  Cooper  on  Equity  Pleading, 
sities     of     professional     practice.  p.  4. 

22 


(h.  II.]  FORMAL  PLEADINGS.  §20 

this  true  in  the  system  of  judicature  prevailing  in  the 
state  of  New  Jersey.  All  this  has  been  changed  in  the 
Code  states,  and  also  in  many  of  the  non-code  states ;  the 
form  of  pleading  greatly  simplified ;  all  technicalities  done 
away  with,-  and  a  complaint  or  declaration  which  suffi- 
ciently states  a  good  cause  of  action,  either  at  law  or  in 
equity,  will  be  retained  and  the  cause  disposed  of,  regard- 
less of  the  form  and  inartful  manner  in  which  the  facts 
are  set  forth. 

<^  20.  The  formal  pleadings  at  common  law.  Under 
the  common-law  system  of  judicature,  requiring  the  par- 
ties litigant  to  so  form  their  allegations  as  to  develop 
with  certainty  and  particularity  an  issue  upon  which  the 
court  could  decide  the  cause,  the  formal  pleadings  allowed 
and  necessary  to  bring  out  this  ''issue"  were: 

1.  The  declaration; 

2.  The  plea; 

3.  The  replication; 

4.  The  rejoinder; 

5.  The  surrejoinder; 

6.  The  rebutter ;  and 

7.  The  surrebutter. 

Whore  any  pleading  was  insufficient  in  form  or  sub- 
stance, the  opposite  party  was  required  to  demur  before 
filing  the  respective  subsequent  pleading  as  above  enumer- 
ated, or  be  held  to  have  waived  any  objection  to  the  de- 
fective pleading. 

This  multiplicity  of  'pleadings  to  come  to  an  issue,  we 
shall  see  later  on,  no  longer  obtains  in  the  various  Code 
states,  and  in  those  states  which  have  no  code  but  have 
adopted  a  simplified  system  of  judicature,  in  which  tlie 
formal  pleadings  permitted  to  raise  an  issue  arc  limited 
to  (1)  the  complaint  or  petition  on  the  part  of  the  phiin- 
tiff  and  the  answer  of  the  defendant,^  or  (2)  the  comi)laint 

2  Bates  V.  Capital  State  Bank,  18  i  Complaint    and    answer,    only, 

Idaho  429,  110  Pac.  277.  allowed    in    Arizona,    Rev.    Stats. 

23 


§20 


CODE   PLEADING   AND   PRACTICE. 


[Ft.  T, 


or  petition  on  the  part  of  tlie  plaintiff,  the  answer  of  the 
defendant  and  the  reply  of  the  plaintiff,^  together  with 
motions  and  demurrers,  in  case  any  formal  pleading  filed 
and  served  is  defective  in  form  or  insufficient  in  substance. 


1901,  par.  1275;  Idaho,  Rev.  Codes 
1909,  §4162;  Nevada,  Cutting's 
Ann.  Comp.  Laws  1900,  §3133; 
Texas,  Sayles'  Civ.  Stats.  1897, 
Art.  nSl. 

2  Complaint,  answer  and  reply, 
only,  is  allowed  in  Alaska,  Ann. 
Code  1907,  C.  C.  P.  §  55;  Arkansas, 
Kirby's  Dig.  of  Stats.  1904,  §  6087; 
Colorado,  Rev.  Stats.  1908,  C.  C.  P. 
§  54;  Iowa,  Ann.  Code  1897,  §  3557; 
Kansas,  Dassler's  Gen.  Stats.  1905, 
§  4968;  Minnesota,  Rev.  Laws  1905, 
§4126;  Missouri,  Ann.  Stats.  1906, 
§596;  Montana,  Rev.  Codes  1907, 
§  6530;     Nebraska,     Ann.     Comp. 


Stats.  1909,  §  6665  (Cobby's  Ann. 
Stats.  1909,  §  1094) ;  New  Mexico, 
Comp.  Laws  1897,  §2658;  North 
Dakota,  Rev.  Code,  1905,  §6853; 
Oklahoma,  Wilson's  Rev.  &  Ann. 
Stats.  1903,  §  4290  (Snyder's  Comp. 
Laws  1909,  §  5626) ;  Oregon,  Bel.  & 
Cot's  Ann.  Codes  &  Stats.  1902, 
§65;  South  Dakota,  Rev.  Codes 
1903,  C.  C.  P.  §  120  (Session  Laws 
1907,  pp.  165,  171);  Utah,  Comp. 
Laws  1907,  §2958;  Washington, 
Remington  &  Bal.'s  Code  1910, 
§  256;  Wisconsin,  Sanborn  &  Ber. 
Ann.  Stats.  1898,  §  2648;  Wyoming, 
Rev.  Stats.  1899,  §  3532. 


24 


CHAPTER  Til. 

CHANGES  MADE  BY  PROCEDURAL  CODES. 

§  21.  Introductory. 

§  22.  Code  pleading  not  founded  on  common-law  pleading. 

§  23.  Object  of  code  pleading. 

§  24,  Allegations  under  code — Facts  only. 

§  25.  Illustration. 

§  26.  Common  counts — How  far  allowed  under  code  plead- 
ing. 

§  27. Special  demurrer. 

§  28. Motion  to  make  more  definite  and  certain. 

§  29.  Forms  of  actions  abolished,  but  not  the  remedies. 

§  30.  Artificial  distinctions  and  fictions  abolished. 

§  21.  Introductory.  The  first  attack  upon  the  citadel 
of  technicality,  formality  and  verbosity  of  the  common- 
law  system  of  pleading  was  made  in  the  New  York  Code^ 
of  Procedure  adopted  in  1848,-  followed  by  the  Ohio  Code, 

1  Code  means  a  systematic  and  177^   improved    upon    by    various 

complete   body   of  the  law,   or  of  acts    between    1801    and    1813,    on 

a  particular  branch  of  it;  as  a  Po-  which  latter  date  there  was  a  gen- 

litical  Code,  a  Civil  Code,  a  Code  eral  revision  of  the  procedural  law 

of  Procedure,  a  Penal  Code,  a  Pro-  of  the  state,  and  again  in  1828,  on 

bate  Code,  and  the  like.     An  act  which  date  it  was  made  a  part  of 

of   the    legislature    establishing    a  the  Revised  Statutes.  None  of  this 

complete  code  of  all  the  law,  or  of  "codification"   constituted   a    code, 

any  particular  branch  of  the  law  as  we  now  understand  that   term, 

of  the  state,  is  not  obnoxious  to  but  consisted  simply  in  a  revision 

the  provision  of  the  state  constitu-  and  uniting  into  one  body  various 

tion    prohibiting    more    than    one  statutes  passed  at  different  times, 

subject  to  be  embraced  in  any  one  and  all  relating  to  practice.    It  was 

act.— See  Johnson  v.  Harrison,  47  not  until  the  adoption  of  the  Code 

Minn.  575,  28  Am.  St.  Rep.  382,  50  of  Procedure,  drafted  by  a  conimis- 

N    W.   923.  sion,  of  which  David  Dudley  Field 

■2  New  York  state  the  pioneer  in  was  chairman,  that  New  York  had 

code  work  in  this  country.    In  that  a  genuine  Code  of  Procedure.   The 

state   the   first   codification,    relat-  original    New   York   Code   of    Pio- 

ing    to    procedural    work,    was    in  cedure  had  but  391  sections. 

25 


§  22  CODE   PLEADING    AND   PRACTICE.  [t*t.  T. 

adopted  in  1854.  Of  these  codes  the  former  was  the  more 
radical  in  that  it  abolished  all  distinctions,  in  the  plead- 
ings in  the  enforcement  of  rights  and  the  prevention  and 
redress  of  grievances,  while  the  Ohio  Code  retained,  in  a 
measure,  the  distinction  between  the  two  classes  of  actions 
at  law  and  in  equity,  in  doing  complete  justice.  The  New 
York  Code  of  Procedure  has  furnished  the  basis  or  model 
for,  and  has  been  followed  by,  nearly  all  the  procedural 
codes  which  have  since  been  adopted  in  the  various  states 
of  the  Union ;  but  in  some  of  these  states — as  in  Arkansas, 
Iowa,  Kentucky  and  Oregon — while  providing  for  but 
one  form  of  action,  actions  at  law  and  proceedings  in 
equity  are  kept  distinct,  as  in  the  Ohio  Code  of  1854. 

§  22.  Code  pleading  not  founded  upon  common-law 
PLEADING.  The  Code  system  of  judicature  is  entirely  new 
in  its  method  of  pleading.^  It  is  in  no  sense  founded  upon, 
or  a  modification  of,  the  common-law  system  of  pleading ; 
neither  is  it  a  ''replica,"  though  in  a  modified  form,  of 
the  old  equity  pleading.  The  act  of  the  legislature  adopt- 
ing a  procedural  code  abolishes  all  forms  of  pleading,  and 
sweeps  away  all  distinctions  in  actions,  theretofore  exist- 
ing, and  provides  that  thereafter  there  shall  be  but  one 
form  of  pleading  in  civil  actions  in  courts  of  record,  and 
prescribes  the  rules  by  which  the  sufficiency  of  pleadings 
are  to  be  determined.^  The  old  rules  and  criteria  for 
determining  the  sufficiency  of  a  pleading  are  no  longer 
applicable ;  and  it  is  not  safe  to  attempt  to  apply  them  by 
analogy. 

David  Dudley  Field  Codes.    Tbis  litical  Code,  a  Civil  Code,  a  Code 

Code  is  not  to  be  confounded  with  of  Civil  Procedure  (including  pro- 

the  "Field  Codes,"  which  were  pre-  bate    proceedings),    and    a    Penal 

sented  to  and  turned  down  by  New  Code. 

York.     As    a   matter   of   fact  "the  i  Bush  v.  Prosser,  11  N.  Y.  347, 

Field  Codes  were  never  adopted  in  ^^'^^ 

any  state,  except  in  the  state  of  2  Id.;    Carrico  v.  Tomlinson,   17 

California;    and   consist  of   a  Po-  Mo.  501. 

26 


oh.  III.] 


OBJECT  OF  CODE  PLEADING. 


§23 


§  23.  Object  of  Code  pleading.  The  object  of  a  pro- 
cedural code  is  to  establish  a  uniform  system  of  practice 
and  to  reduce  the  system  of  pleading  to  one  allegation, 
jnerely — although  two  or  more  issues  may  still  be  joined, 
in  proper  cases,  in  the  same  pleading^ — without  reference 
to  discovery,-  so  that  the  forai  of  allegation  may  be 
adapted  to  cases  which,  under  the  common-law  system  of 
judicature  and  systems  founded  upon  the  common-law 
system,  are  distinguished  into  (1)  legal  actions,  and 
(2)  suits  in  equity;^  and  this  is  the  distinguishing  fea- 
ture of  Code  pleading.'*    In  the  language  of  Mr.  Justice 


1  See,  ante,  §  17. 

2  Complaint  drawn  with  view  to 
discovery,  "under  oath,"  should 
be  stricken  out. — Bowen  v.  Aubrey, 

22  Cal.  566,  569;  Guy  v.  Washburn, 

23  CaL  111,  112. 

?■  New  York  Code  Commission  as 
given  in  Moak's  Van  Stanf.  PL, 
p.  28. 

Rules  of  pleading  under  the 
Code  are  the  same  at  law  and  in 
equity. — Bowen  v.  Aubrey,  22  Cal. 
566,  569;  Hanna  v.  Reeves,  22 
Wash.  6,  10,  60  Pac.  62. 

A  discussion  of  the  rules  of 
pleading,  post,  §§  709  et  seq. 

4  Smith  V.  Rowe,  4  Cal.  6,  7; 
Coryell  v.  Cain,  16  Cal.  567;  Wig- 
gins V.  McDonald,  18  Cal.  126,  127; 
Bowen  v.  Aubrey,  22  Cal.  566; 
Jolly  v.  Terre  Haute  Drawbridge 
Co.,  9  Ind.  424;  Woodford  v.  Lea- 
venworth, 14  Ind.  311;  Emmons  v. 
Kiger,  23  Ind.  483;  Matlock  v. 
Todd,  25  Ind.  128;  Vanschoiack  v. 
Farrow,  25  Ind.  310;  Troost  v.  Da- 
vis, 31  Ind.  34,  39;  Lytle  v.  Lytle, 
37  Ind.  281;  King  v.  Enterprise 
Ins.  Co.,  45  Ind.  43;  Claussen  v.  La- 
Irenz,  4  G.  Greene  (Iowa)  224; 
Singleton  v.  Scott,  11  Iowa  589; 
Pfiffner  v.  Krapfel,  28  Iowa  27; 
Cowin    v.     Toole,     31    Iowa     513; 


Moorehead  v.  Hyde,  38  Iowa  382; 
Garret  v.  Gault,  52  Ky.  (13  B. 
Mon.)  378;  Hill  v.  Barrett,  53  Ky. 
(14  B.  Mon.)  83;  Martin  v.  Mobile 
&  O.  R.  Co.,  70  Ky.  (7  Bush)  116; 
Richmond  &  Lexington  Turnpike 
Road  Co.  v.  Rogers,  70  Ky.  (7 
Bush)  532;  Louisville  &  Portland 
Canal  Co.  v.  Murphy,  72  Ky.  (9 
Bush)  522;  Rogers  v.  Penniston, 
16  Mo.  435;  Maguire  v.  Vice,  20 
Mo.  430;  Hesse  v.  Missouri  State 
Mut.  Fire  &  M.  Ins.  Co.,  21  Mo.  93; 
Richardson  v.  Means,  22  Mo.  495; 
Dobson  V.  Pearce,  12  N.  Y.  156,  62 
Am.  Dec.  152,  1  Abb.  Pr.  97  affirm- 
ing 8  N.  Y.  Super.  Ct.  Rep.  (1 
Duer)  142,  10  Leg.  Obs.  170;  Crary 
V.  Goodman,  12  N.  Y.  266,  268,  64 
Am.  Dec.  506,  reversing  9  Barb. 
657;  White  v.  Joy,  13  N.  Y.  83; 
Reubens  v.  Joel,  13  N.  Y.  488;  Far- 
ron  V.  Sherwood,  17  N.  Y.  227,  229; 
Phillips  V.  Gorham,  17  N.  Y.  270; 
Emery  v.  Pease,  20  N.  Y.  62;  But- 
ler V.  Lee,  42  N.  Y.  (3  Keyes)  70, 
1  Abb.  Ct.  App.  Dec.  279,  33  How. 
Pr.  251,  238;  De  Graw  v.  Elmore, 
50  N.  Y.  1;  Arthur  v.  Homestead 
Fire  Ins.  Co.,  78  N.  Y.  462,  467,  34 
Am.  Rep.  550;  Grattan  v.  Metro- 
politan Life  Ins.  Co.,  SO  N.  Y.  281. 
294,  36  Am.  Rep.  617;   Cropsey  v. 


27 


§24 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I, 


Gardner,  the  two  systems  of  pleading  theretofore  prevail- 
ing were  blended  and  formed  into  a  single  and  uniform 
system  which  should  combine  the  principles  peculiar  to 
each,^  and  be  applicable  alike  to  all  actions.*^ 

§  24.  Allegations  under  Code — Facts  only.  Under 
the  various  procedural  codes  the  facts,  only,  are  to  be 
alleged — all  *  *  fictions ' '  are  abolished ;  that  is,  the  ultimate 
material  facts  in  the  case  as  contradistinguished  from 
(1)  the  law  in  the  case,  (2)  argument,  (3)  hypothesis,  and 
(4)  the  evidence  of  the  facts,  or  the  probative  facts.^ 


Sweeney,  27  Barb.  (N.  Y.)  310,  7 
Abb.  Pr.  129;  Genet  v.  Howland, 
45  Barb.  (N.  Y.)  560,  30  How.  Pr. 
360;  Peck  v.  Newton,  46  Barb. 
(N.  Y.)  173,  174;  Wooden  v.  Waf- 
fle, 1  Code  Rep.  N.  S.  392,  6  How. 
Pr.  145;  Hall  v.  Hall,  38  How.  Pr. 
(N.  Y.)  97,  98;  Birdsall  v.  Birdsall, 
41  How.  Pr.  (N.  Y.)  389,  397;  Mc- 
Keon  V.  See,  27  N.  Y.  Super.  Ct. 
Rep.  (4  Robt.)  449,  468,  affirmed 
51  N.  Y.  300,  10  Am.  Rep.  659,  mod- 
ifying 28  How.  Pr.  238;  Brown  v. 
Brown,  27  N.  Y.  Super.  Ct.  Rep.  (4 
Robt.)  702;  Klorme  v.  Bradstreet, 
7  Ohio  St.  453;  Lamson  v.  Pfaff,  1 
Handy  (Ohio)  453;  Bonesteel  v. 
Bonesteel,  28  Wis.  250;  Dickson  v. 
Cole,  34  Wis.  625. 

5  Giles  V.  Lyon,  4  N.  Y.  600,  1 
Code  Rep.  N.  S.  257;  Bush  v.  Pros- 
ser,  11  N.  Y.  347,  354. 

6  De  Witt  V.  Hays,  2  Cal.  463,  65 
Am.  Dec.  352;  Grain  v.  Aldrich,  38 
Cal.  514,  520,  99  Am.  Dec.  423; 
Marquat  v.  Marquat,  12  N.  Y.  336, 
342;  Emery  v.  Pease,  20  N.  Y.  62, 
65;  Oneida  Bank  v.  Ontario  Bank, 
21  N.  Y.  490;  New  York  Ice  Co.  v. 
Northwestern  Ins.  Co.,  23  N.  Y. 
357,  12  Abb.  Pr.  414,  21  How..  Pr. 
296;  Lattin  v.  McCarty,  41  N.  Y. 
107,  reversing  8  Abb.  Pr.  925,  17 
How.  Pr.  239;  Hemmingway  v. 
Poucher,  98  N.  Y.  281,  288;    Har- 


rison V.  Brooklyn,  B.  &  C.  I.  R. 
Co.,  100  N.  Y.  621,  3  N.  E.  187; 
Scheu  V.  New  York,  L.  &  W.  R. 
Co.,  12  N.  Y.  St.  Rep.  99,  106; 
Mowry  v.  Hill,  11  Wis.  146. 

1  Green  v.  Palmer,  15  Cal.  411, 
414,  76  Am.  Dec.  492;  Coryell  v. 
Cain,  16  Cal.  571;  Deux  v.  Domec, 
18  Cal.  81;  Grenwell  v.  Walden,  23 
Cal.  165,  169;  Thomas  v.  Desmond, 
63  Cal.  427;  Bowen  v.  Emmerson, 
3   Ore.  452,  455. 

Complaint  merely  stating  proba- 
tive facts,  or  the  evidence  in  the 
cause,  is  demurrable. — Thomas  v. 
Desmond,  63  Cal.  426,  427;  Ahlers 
V.  Smiley,  11  Cal.  App.  346,  104 
Pac.  998. 

See  note  76  Am.  Dec.  498. 

Conclusions  of  law  should  not  be 
alleged. — Green  v.  Palmer,  15  Cal. 
411,  414,  76  Am.  Dec.  492;  Spring 
Valley  Water  Works  v.  San  Fran- 
cisco (dis.  op.),  82  Cal.  286,  321, 
322,  16  Am.  St.  Rep.  116,  6 
L.  R.  A.  756,  22  Pac.  910,  1046. 

See  discussion,  post,  §  715. 

Materiality  of  facts  stated  may 
be  determined  by  the  proper  an- 
swer to  the  question:  "If  it  be  de- 
nied, will  the  failure  to  prove  it 
decide  the  case  in  whole  or  in 
part"?  If  it  will  not  the  alleged 
fact  is  immaterial. — Cline  v.  Cline, 
3  Ore.  355. 


28 


ch.  III.] 


ALLEGATION   OF  FACTS   ONLY, 


§24 


Only  such  facts  as  constitute  the  cause  of  action  or  de- 
fense are  to  be  stated,-  in  plain  and  concise  language ;  but 
each  party  must  allege  every  fact  that  he  is  required  to 
prove,  and  is  precluded  from  proving  any  fact  not 
alleged.^    In  those  cases  where  the  complaint  or  petition^ 


As  to  what  are  material  facts, 
see,  post,  §  743,  footnote  and  text 
going  therewith. 

Matters  of  defense  should  not 
be  covered  in  complaint. — Green 
V.  Palmer,  15  Cal.  411,  414,  76  Am. 
Dec.  492;  Wilson  v.  Cleveland,  30 
Cal.  192,  200,  89  Am.  Dec.  85;  Pat- 
terson V.  Keystone  Min.  Co.,  30 
Cal.  360,  364;  Larco  v.  Casaneuava, 
30  Cal.  560,  565;  Raconillat  v. 
Rowe,  32  Cal.  450,  456;  Jones  v. 
Petaluma,  36  Cal.  230,  233;  Bruck 
V.  Tucker,  42  Cal.  346,  351;  United 
States  v.  Williams,  6  Mont.  379, 
385,  12  Pac.  851. 

Matters  of  evidence  should  be 
stricken  from  complaint. — Wilson 
V.  Cleveland,  30  Cal.  192,  89  Am. 
Dec.  85;  Jones  v.  Petaluma,  36 
Cal.  230;  Red  Bluff  (Town  of)  v. 
Walbridge,  11  Cal.  App.  346,  104 
Pac.  998. 

As  to  pleading  matters  of  evi- 
dence, see,  post,  §  717. 

Ultimate  facts,  only,  should  be 
alleged.  Not  the  probative  facts. 
— Grenwell  v.  Walden,  23  Cal.  165, 
169;  Thomas  v.  Desmond,  63  Cal. 
426,  427;  Ahlers  v.  Smiley,  11  Cal. 
App.  346,  104  Pac.  998. 

2  Green  v.  Palmer,  15  Cal.  411, 
412,  76  Am.  Dec.  492;  Coryell  v. 
Cain,  16  Cal.  567,  571;  Wilson  v. 
Cleveland,  30  Cal.  192,  200,  89  Am. 
Dec.  85;  Goodspeed's  Estate,  2 
Cof.  Prob.  147,  148;  Harris'  Es- 
tate, 3  Cof.  Prob.  13;  Holladay  v. 
Elliott,  3  Ore.  346;  Cline  v.  Cline, 
3  Ore.  359;  Singer  v.  Salt  Lake 
City  Copper  Mfg.  Co.,  17  Utah  143, 


157,  70  Am.  St.  Rep.  776,  53  Pac. 
1024. 

See  notes  79  Am.  Dec.  283;  82 
Am.  Dec.  94;  83  Am.  Dec.  69;  84 
Am.  Dec.  781;  97  Am.  Dec.  231;  16 
Am.  St.  Rep.  134;  30  Am.  St.  Rep. 
705;   59  Am.  St.  Rep.  179. 

Exception  to  requirement  that 
all  facts  must  be  pleaded  which 
the  party  is  required  to  prove,  is 
to  be  noted  in  those  cases  in  which 
the  complaint,  in  the  direct  alle- 
gations, omits  an  essential  fact 
that  must  be  proved,  but  that 
omitted  fact  is  contained  in  an 
instrument  in  writing  which  is  set 
out  in  haec  verba  in  the  com- 
plaint.— McPherson  v.  San  Joaquin 
County,  6  Cal.  Unrep.  257,  261,  56 
Pac.  802,  804. 

See,  also,  post,  §  721. 

"No  excuse  for  stuffing  com- 
plaint with  matters  of  evidence  in- 
stead of  issuable  facts." — Guy  v. 
Washburn,  23  Cal.  Ill,  112. 

As  to  pleading  surplusage  and 
unnecessary  matter,  see,  post, 
§728. 

3  Green  v.  Palmer,  15  Cal.  411, 
417,  76  Am.  Dec.  492;  Dreux  v. 
Domec,  18  Cal.  83,  88;  Grenwell  v. 
Walden,  23  Cal.  165,  169;  Thomas 
V.  Desmond,  63  Cal.  427;  Spring 
Valley  ^^'ater  Works  v.  San  Fran- 
cisco (dis.  op.),  82  Cal.  286,  321. 
323,  16  Am.  St.  Rep.  116,  6  L.  R.  A. 
756,  22  Pac.  910;  Allen  v.  Home 
Ins.  Co.,  133  Cal.  29,  30,  65  Pac.  138. 

4  First  pleading  of  plaintiff  is 
designated  a  "complaint"  in  some 
nrocedural  codes,  and  a  "petition" 


29 


§  25  C:()L)E   PLEADING    AND    PRACTICE.  [Pt.  T, 

alleges  facts  upon  which  the  plaintiff  is  entitled  to  any 
relief,  the  pleading  will  not  be  defective  and  demurral)le 
because  of  a  failure  to  state  other  facts. ^  Where  a  cause 
of  action  is  stated  on  one  ground,  it  is  immaterial  that 
the  complaint  also  states  a  cause  of  action  upon  another 
ground;  thus,  where  a  cause  of  action  in  ejectment  is  set 
out,  the  complaint  will  not  be  defective  and  demurrable 
because  it  also  shows  a  cause  of  action  for  unlawful  de- 
tainer.^ The  pleading  of  the  plaintiff  will  be  sufficient 
where  it  states  a  cause  of  action,  either  legal  or  equitable," 
regardless  of  the  prayer,^  and  relief  will  be  granted  in  any 
form  authorized  by  the  facts  set  out  and  proved  on  the 
trial;''  and  where  the  facts  set  out  warrant  equitable 
relief,  the  prayer  may  be  amended  so  as  to  demand  equi- 
table relief,  instead  of  asking  for  simple  damages,  and 
the  like.i^ 

§  25.    Illustration.    Thus,  in  an  action  to  recover 

money  due  under  a  contract,  facts  must  be  set  out  which 
show  (1)  that  a  contract  existed  between  the  parties,  and 

in  others;   in  the  California  Code  o  White    v.    Lyon,    42   Cal.    279; 

of    Civil    Procedure    it    is    termed  Becker  v.  Superior  Court,  151  Cal. 

a  complaint,  and  that  term  will  be  313,   317,  90  Pac.   G90;    Hayden  v. 

used  throughout  this  treatise.  Collins,   1   Cal.   App.   261,   81    Pac. 

.-.  Houghtaling    v.    Ellis,    1    Ariz.  1121. 

383,  387,   25  Pac.   534;   Wiggins  v.  7  Grain   v.   Aldrich,    38   Cal.   514, 

McDonald,  18  Cal.  126,  127;   John-  520,    99    Am,    Dec.    423;    Henry    v. 

sen   V.    Santa   Clara,    28    Cal.    545,  Travelers'   Ins.   Co.,    16   Colo.   179, 

547;  Grain  v.  Aldrich,  38  Cal.  514,  186,  26  Pac.  318;  Dickerson  v.  Spo- 

99  Am.  Dec.  423;  White  v.  Lyons,  kane  (City  of),  26  Wash.  292,  295, 

42    Cal.    279,    282;    McPherson    v.  66  Pac.  381. 

Weston,  64  Cal.  275,  280,  30  Pac.  s  Specific    performance    may    be 

842;  Watson  v.  Sutro,  86  Cal.  500,  decreed,     although     damages     are 

528,    24    Pac.    178,    25    Pac.    645;  prayed. — Kingston  v.   Walters,   14 

Whitehead  v.   Sweet,  126  Cal.  67,  N.  M.  373,  93  Pac.  702. 

73,  76,  58  Pac.  376;   Nellis  v.  Pa-  9  Rollins  v.  Forbes,  10  Cal.  299, 

cific  Bank,    127    Cal.    166,    170,    59  300;  Oliver  v.  Blair,  2  Cal.  Unrep. 

Pac.  830;  McDougald  v.  Hulet,  132  564,  8  Pac.  612. 

Cal.  154,  160,  64  Pac.  278;  Allen  v.  See  De  Leonis  v.  Hammel.  1  Cal. 

Home  Ins.  Co.,  133  Cal.  29,  30,  65  App.  394,  .82  Pac.  351. 

Pac.  138;  Wa  Ching  v.  Constantine,  lo  Walsh  v.  McKeen,  75  Cal.  519, 

1  Idaho  266,  267;   First  Nat.  Bank  523,  17  Pac.   673;    Hayden  v.   Col- 

V.  Bews,  3  Idaho  492,  31  Pac.  818.  lins,  1  Cal.  App.  259,  261,  81  Pac. 

30 


C'll.  III.]  COMMON   COUNTS.  §  26 

that  it  has  been  broken  ;i  (2)  the  promise  and  the  consid- 
eration therefor,  or  facts  from  which  a  promise  or  under- 
taking upon  a  sufficient  consideration  is  necessarily 
inf erred;-  (3)  facts  should  be  stated  showing  that  the 
time  of  payment  has  expired,  or  (4)  facts  shomng  in  what 
manner  the  contract  has  been  broken.^ 

<§  26.    Common  counts — How  far  allowed  under 

Code  pleading.  Under  the  system  of  common-law  plead- 
ing, common  counts  were  required  to  be  stated  in  concise 
and  technical  langimge.  These  common  counts  consisted  of 
(1)  the  indebitatus  count;  (2)  the  quantum  meruit  count; 
(3)  the  quantum  valebant  count,  and  (4)  the  account 
stated  count.  While  all  the  common-law  forms  are  abol- 
ished by  procedural  codes,  and  these  common  counts  posi- 
tively prohibited  by  the  languages  of  the  various  practice 
codes,  and  the  common  counts  are  entirely  out  of  harmony 
with  all  reformed  systems  of  pleading ;  yet  the  courts  in 
the  various  Code  states  have  overridden  the  plain  declara- 
tions and  provisions  of  these  various  procedural  codes, 
and  by  ''construction"  have  retained  in  the  Code  system 
of  pleading  the  common  counts.  This  has  been  done  by 
a  process  of  reasoning  incomprehensible  and  inexplicable 
on  any  theory,  except  upon  the  assumption  that  the  early 
judges,  called  upon  to  pass  upon  the  point,  were  so  in- 
grained with  the  principles  of  the  common-law  system  of 
pleading — and   possibly   so   violently   prejudiced   in   its 

1120;  Bedolla  v.  Williams,  15  Cal.  roft,  4  E.  D.  Smith  (N.  Y.)   34,  1 

App.  742,  115  Pac.  748.  Abb.  Pr.  203,  10  How.  Pr.  377. 

1  Allegation   defendant   indebted  ^^  ^^  allegation  of  conclusions, 

to  plaintiff,  is  substantially  the  al-  ^^^^  ^^^^^  gg  ^^^^  ^^^ 
legation    of    a    conclusion    to    be 

found  by  the  jury  at  the  end  of  the  -  "Not    necessary    to    state     in 

trial  of  the  cause.— Bowen  v.  Em-  terms   a  promise   to  pay;    it   was 

merson,  3  Ore.  452.     See  Seeley  v.  sufficient   to    state   facts    showing 

Engell,  17   Barb.    (N.  Y.)    530,  re-  the  duty  from  which  the  law  im- 

versed  on  another  point,  13  N.  Y.  PHes  a  promise."— Farron  v.  Sher- 

542;    Lienan   v.   Lincoln,    9    N.   Y.  wood,  17  N.  Y.  227,  229.    See  Keene 

Super.  Ct.  Rep.    (2   Duer)    670.  12  v.   Eldridge,  47   Ore.   182.   82   Pac. 

Leg.  Obs.  29;  Levy  v.  Bend,  1  E.  D.  803- 

Smith  (N.  Y.)  1G9;  Drake  v.  Cock-  3  Bowen    v.    Emmerson,    3    Ore. 

31 


§26 


CODE   PLEADING   AND   PRACTICE. 


Pt.  I, 


favor,  that  they  could  not  fairly  and  intelligently  apply  the 
plain  rules  provided  by  the  various  procedural  codes  for 
determining  the  sufficiency  of  a  pleading  under  the  Code ; 
and  the  later  judges,  brought  up  under  the ' '  case  system, ' ' 
were  such  hide-bound  worshipers  of  ''precedents" 
(whether  right  or  wrong  on  principle)  that  they  could  not 
break  away  from  the  early  erroneous  rulings,  and  conform 
their'  decisions  in  the  matter  to  the  plain  directions  of  the 
different  codes  of  procedure.  The  pioneer  in  this  field  of 
misconstruction,  or  wilful  refusal  to  follow  the  plain 
directions  of  the  Code  of  Procedure,  is  usually  thought  to 
have  been  Mr.  Justice  Jewett,  of  the  New  York  Court  of 
Appeals,^  and  this  "lead"  has  been  followed — not  with- 
out vigorous  objection  and  strong  criticism  on  the  part  of 
many  of  the  judges, ^  it  is  to  be  noted — in  all  the  states  in 


452;  Distler  v.  Dabney,  3  Wash. 
204,  28  Pac.  336. 

1  In  Allen  v.  Patterson,  7  N.  Y. 
(3  Seld.)  476,  57  Am.  Dec.  542,  Mr. 
Justice  Jewett  does  not,  in  terms, 
say  that  a  complaint  in  the  form 
of  the  common  counts  under  the 
common-law  system  of  pleading  is 
sufficient  under  the  Code  of  Pro- 
cedure of  New  York,  but  what  he 
does  say  is  tantamount  to  such  a 
holding;  the  declaration  in  terms 
is  made  in  the  subsequent  case  of 
Graham  v.  Gammon,  12  N.  Y. 
Super.  Ct.  Rep.  (5  Duer)  697,  13 
How.  Pr.  360. 

— "The  opinion  in  that  case," 
Allen  V.  Patterson,  supra,  "it  must 
be  conceded,  is  quite  out  of  the 
general  current  of  authority;  and  it 
is  diflicult  to  reconcile  it  with  the 
numerous  decisions  in  the  same 
state,  that  announce  and  reiterate 
the  rule,  that  the  code  requires 
facts  to  be  stated,  and  not  the  con- 
clusions that  result  from  the  facts. 
The  opinion  assumes,  without  ar- 
gument and  without  citing  any 
authority  relating  to  the  construc- 


tion of  any  modern  code,  that  the 
statement,  that  the  defendant  is 
indebted  to  the  plaintiff  in  a  cer- 
tain sum,  is  the  statement  of  a 
fact,  and,  with  equal  brevity,  it  re- 
verses the  long-settled  rule,  that 
'if  the  meaning  of  the  words  be 
equivocal,  they  shall  be  construed 
most  strongly  against  the  party 
pleading  them.'  " — Bowen  v.  Em- 
merson,  3  Ore.  452. 

2  Rule  doubted  in  Quimby  v. 
Lyon,  63  Gal.  394,  395;  Shade  v. 
Sisson  Mill  &  Lumber  Co.,  115  Gal. 
357,  368,  47  Pac.  135;  Kimball  v. 
Lyon,  19  Colo.  266,  35  Pac.  44;  Pio- 
neer Fuel  Co.  v.  Hager  (dis.  op.), 

57  Minn.  76,  47  Am.  St.  Rep.  574, 

58  N.  W.  828;  Penn  Mut.  Life  Ins. 
Co.  v.  Conoughy,  54  Neb.  123,  72 
N.  W.  422;  Bowen  v.  Emmerson,  3 
Ore.  452. 

"If  the  question  were  new,  I 
should  be  inclined  to  hold  the  com- 
plaint,"— pleading  common  counts 
only, — "insufficient  upon  the  ground 
that  it  does  not  state  facts  suf- 
ficient to  constitute  a  cause  of 
action.  Notwithstanding  the  many 
32 


ch.  III.] 


COMMON  COUNTS. 


§26 


which  procedural  codes  have  been  adopted,'  with  the  pos- 


decisions  to  the  contrary,  I  have 
never  been  able  to  regard  the  com- 
mon counts  as  consistent  with  our 
code  of  practice,  which  was  in- 
tended to  provide  a  uniform  of 
pleading  in  all  cases.  The  funda- 
mental rule  in  our  system  of  plead- 
ing requires  a  statement  of  the 
facts  constituting  the  cause  of 
action  or  defense  in  ordinary  and 
concise  language,  so  that  the  pre- 
cise matter  intended  may  appear 
upon  the  face  of  the  pleading,  and 
the  opposite  party  may  not  be  put 
upon  his  outside  knowledge  for 
the  purpose  of  ascertaining  what 
is  meant.  I  do  not  think  the  com- 
mon counts  satisfy  this  rule,  and 
must  regard  their  retention  as  im- 
pairing the  system;  but  a  contrary 
view  was  adopted  at  the  outset, 
and  has  been  uniformly  adhered 
to  since.  The  matter  is  not  of 
sufficient  importance  to  justify  us 
in  disturbing  a  rule  so  long  settled. 
For  these  reasons  I  concur  in  the 
judgment."— Sanderson,  J.,  in  Ab- 
adie  v.  Carrillo,  32  Cal.  172,  175. 

oARK. — Ball  V.  Fulton  County, 
31  Ark.  379;   McCreary  v.  Taylor, 

38  Ark.  393.  CAL.— Reynolds  v.  Jor- 
dan, 6  Cal.  108,  111;  Freeborn  v. 
Glazer,  10  Cal.  337,  338;  Abadie  v, 
Carrillo,  32  Cal.  175;  Hunt  v.  San 
Francisco  (City  of),  11  Cal.  250; 
De  Witt  v.  Porter,  13  Cal.  171;  Wil- 
kins  V.  Stidger,  22  Cal.  231,  83  Am. 
Dec.  64;  Miller  v.  Van  Tassel,  24 
Cal.  458,  459;  Abadie  v.  Carrillo,  32 
Cal.  172,  175;    Merritt  v.  Glidden, 

39  Cal.  559,  2  Am,  Rep.  479;  Fri- 
mouth  V.  Frimouth,  46  Cal.  42; 
Pavisich  v.  Bean,  48  Cal.  364,  365; 
Magee  v.  Kast,  49  Cal.  141,  145; 
De  La  Guerra  v.  Newhall,  55  Cal. 
21,  23;  Clay  v.  Carroll,  67  Cal.  19, 

I  Code  PL  and  Pr.— 3 


6  Pac.  874;   Manning  v.  Dallas,  73 
Cal.  420,  422,  15  Pac.  34;   Lake  v. 
Hancock,  76  Cal.  127,  17  Pac.  937; 
Dashaway  Assoc,  v.  Rogers,  79  Cal. 
211,  21  Pac.  742;  Castagnino  v.  Bal- 
letta,   3   Cal.   Unrep.   107,   21   Pac. 
1098;    Castagnino    v.    Balletta,    82 
Cal.    250,    257,    259,    23    Pac.    127; 
Vvliitton  V.   Sullivan,  96   Cal.   480, 
4C2,   31   Pac.   1115;    Brown   v.   Po- 
mona Board  of  Education,  103  Cal. 
531,  535,  37  Pac.  503;    Barrere  v. 
Somps,   113    Cal.   97,   45   Pac.   177, 
572;    Minor  v.  Baldridge,  123  Cal. 
187,   190,   55   Pac.  783;    Nichols  v. 
Randall,  136  Cal.  426,  69  Pac.  26; 
Donegan  v.  Houston,   5  Cal.  App. 
631,  90  Pac.  1074;  Merchants'  Col- 
lection Agency  v.  Gopcevic,  23  Cal. 
App.  216,  137  Pac.  609.     COLO.— 
Campbell     v.     Shiland,     14     Colo. 
491,     23     Pac.     324;      Wilcox     v. 
Jamieson,    20    Colo.    158,    36    Pac. 
902;    Henry  Invest.  Co.  v.  Semon- 
ian,  40  Colo.  269,  90  Pac.  682.   IND 
— Kerstetter  v.  Raymond,  10  Ind 
199;    Brown  v.  Perry,  14  Ind.  32 
Wolf    V.    Schofield,    38    Ind.    175 
Johnson  v.   Kilgore,   39   Ind.   147 
Bouslog   V.   Garrett,   39   Ind.    338 
Curran  v.  Curran,  40  Ind.  473;  Jen- 
nings County  Commrs.  v.  Verbarg, 
63  Ind.  107;  Humphrey  v.  Fair,  79 
Ind.  410;  Jenney  Elec.  Co.  v.  Bran- 
ham,  145  Ind.  314,  33  L.  R.  A.  395; 
41  N.  E.  448;   Field  v.  Brown,  146 
Ind.  293,  45  N.  E.  464.  KAN.— Meag- 
her V.  Morgan,  3  Kan.  372,  87  Am. 
Dec,  476;  Clark  v.  Fensky,  3  Kan. 
389;  Emslie  v.  Leavenworth  (City 
of),  20  Kan.  562;  Water  Power  Co. 
V.  McMurray,  24  Kan.  62;   Barons 
V.  Brown,  25  Kan.  410,  411;  School 
District  No.   46  v.  Lund,  51  Kan. 
731,  33  Pac.  595;  Jenson  v.  Lee,  67 
Kan.   539,  73  Pac.  72;    Brasher  v. 

qo 
0<J 


§26 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I. 


sible  exception  of  Minnesota*  and  Oregon  -^  and  even  these 


Robenstein,  71  Kan.  455,  80  Pac. 
950;  Schwartzel  v,  Karnes,  2  Kan. 
App.  782,  44  Pac.  41.  MO.— Car- 
roll V.  Paul's  Admr.,  16  Mo.  226; 
Stout  V.  St.  Louis  Tribune  Co., 
52  Mo.  342;  Mansur  v.  Botts, 
SO  Mo.  651;  Moore  v.  Gaus  Mfg. 
Co.,  113  Mo.  98,  20  S.  W.  975; 
Clover  V.  Henderson,  120  Mo.  367, 
41  Am.  St.  Rep.  695,  25  S.  W.  175; 
Warder  v.  Seitz,  157  Mo.  140,  57 
S.  W.  537;  Henderson  v.  Mace,  64 
Mo.  App.  393;  Richardson  v.  Moffit- 
West  Drug  Co.,  92  Mo.  App.  515,  69 
S.  W.  398.  MONT.— Higgins  v.  Ger- 
manic, 1  Mont.  230;  Monroe  v. 
Cannon,  24  Mont.  316,  320,  81  Am. 
St.  Rep.  439,  61  Pac.  863.  NEV.— 
Howard  v.  Richards,  2  Nev.  128,  90 
Am.  Dec.  520;  McManus  v.  Ophir 
Silver  Min.  Co.,  4  Nev.  15;  White 
Pine  County  Bank  v.  Sadler,  19 
Nev.  98,  6  Pac.  941.  N.  Y.— Far- 
ron  V.  Sherwood,  17  N.  Y.  227;  Mof- 
fet  V.  Sackett,  18  N.  Y.  522;  Ketel- 
tas  V.  Myers,  19  N.  Y.  231;  Hosley 
V.  Black,  28  N.  Y.  438,  26  How.  Pr. 
97;  Hurst  v.  Litchfield,  39  N.  Y. 
377,  7  Trans.  App.  179;  Fells  v. 
Vestvali,  41  N.  Y.  (2  Keyes)  152; 
Sussdorf  V.  Schmidt,  55  N.  Y.  319; 
Baumann  v.  ^Manhattan  Consum- 
ers' Brewing  Co.,  97  App.  Div.  470, 
89  N.  Y.  Supp.  1088;  Worthington 
V.  Worthington,  100  App.  Div.  332, 
91  N.  Y.  Supp.  443;  Dollner  v.  Gib- 
son, 3  N.  Y.  Code  Rep.  153;  Cud- 
lipp  V.  Whipple,  11  N.  Y.  Super.  Ct. 
Rep.  (4  Duer)  610,  1  Abb.  Pr.  106; 
Graham  v.  Carnman,  12  N.  Y. 
Super.  Ct.  Rep.  (5  Duer)  697,  13 
How.  Pr.  360;  Merwin  v.  Hamilton, 
13  N.  Y.  Super.  Ct.  Rep.  (6  Duer) 
244,  253;  Rogers  v.  Verona,  14  N.  Y. 
Super.  Ct.  Rep.  (1  Bosw.)  417; 
Bates  V.  Cobb,  18  N.  Y.  Super.  Ct. 


Rep.  (5  Bosw.)  29;  Betts  v.  Bache, 
22  N.  Y.  Super.  Ct.  Rep.  (9  Bosw.) 
614,  14  Abb.  Pr.  279;  Sloman  v. 
Schmidt,  8  Abb.  Pr.  5;  Roediger 
V.  Simmons,  14  Abb.  Pr.  N.  S.  256; 
Beekman  v.  Platner,  15  Barb.  550; 
Evans  v.  Harris,  19  Barb.  (N.  Y.) 
416;  Sherman  v.  New  York  Cent. 
R.  Co.,  22  Barb.  239;  Chesbrough 
V.  N.  Y.  &  E.  R.  Co.,  26  Barb.  9,  13 
How.  Pr.  557;  Atkinson  v.  Collins, 
30  Barb.  430,  9  Abb.  Pr.  353,  18 
How.  Pr.  235;  Goelth  v.  White,  35 
Barb.  76;  Adams  v.  Holley,  12 
How.  Pr.  326;  Levy  v.  Ely,  15 
How.  Pr.  395;  Doherty  v.  Shields, 
86  Hun  303,  33  N.  Y.  Supp.  497. 
N.  C— Jones  v.  Mial,  82  N.  C. 
252;  Burton  v.  Rosemary  Mfg. 
Co.,  132  N.  C.  17,  43  S.  E.  489. 
N.  D. — Weber  v.  Lewis,  19  N.  D. 
473,  34  L.  R.  A.  (N.  S.)  364,  126 
N,  W.  105.  OHIO— Laws  v.  Mc- 
Carty,  1  Hand.  191;  Middleport 
Woolen  Mills  Co.  v.  Titus,  35 
Ohio  St.  253;  Hazen  v.  O'Connor. 
14  Ohio  C.  C.  529,  8  Ohio  C.  D. 
87;  Holmes  v.  Holloud,  8  Ohio 
Dec.  Repr.  768.  OKLA.— Fox  v. 
Easter,  10  Okla.  527,  62  Pac.  283, 
PA. — Kauffman  v.  Jacobs,  4  Pa.  Co. 
Ct.  462.  UTAH— Kilpatrick-Koch 
Dry  Goods  Co.  v.  Box,  13  Utah 
494,  45  Pac.  629.  W.  VA.— Ports- 
mouth Cotton  Oil  Ref.  Co.  v.  Oli- 
ver Ref.  Co.,  109  Va.  513,  132  Am. 
St.  Rep.  924,  64  S.  E.  56.  WIS.— 
Green  v.  Gilbert,  21  Wis.  395; 
Grannis  v.  Hooker,  29  Wis.  65; 
Williams  v.  Brunson,  41  Wis.  418; 
Thomson  v.  Elton,  109  Wis.  589, 
85  N.  W.  425. 

4  Forster  v.  Klrkpatrick,  2  Minn. 
Zl'O. 

5  Davis    V.    Mason,    3    Ore.    154; 
Rowen  v.  Emmerson,   3   Ore.   452. 


34 


ell.  III.]  SPECIAL  DEMURRER — MOTION  §§  27,  28 

states  seem  to  be  coming  around  to  the  doctrine  that  a 
complaint  drawTi  in  the  form  of  the  common  counts  is  suf- 
ficient^— in  the  absence  of  objection  by  demurrer"^  or  a 
motion  to  make  more  definite  and  certain.*  From  this  it 
will  be  seen  that  the  overwhelming  weight  of  decision'' 
renders  this  false  and  unjustifiable  construction  as  to  com- 
mon counts  being  sufficient  under  the  code,  the  rule  in  all 
states  in  which  a  procedural  code  has  been  adopted. 

"^i  27. Speciax,  demurrer.  While  it  is  gener- 
ally held  that  a  complaint,  in  the  form  of  the  common 
counts  at  common  law,  is  good  under  the  procedural  codes, 
in  the  absence  of  objection  thereto,  and  that  it  is  good  as 
against  a  general  demurrer;^  yet,  as  a  matter  of  fact,  it  is 
recognized  that  such  a  complaint  is  not  a  compliance  with 
the  requirements  of  the  procedural  codes,  and  is  not  suffi- 
cient, notwithstanding  the  ill-considered  court-holdings, 
and  is  vulnerable  to  a  special  demurrer  on  the  ground  that 
the  complaint  is  unintelligible  and  uncertain. - 

§  28. Motion   to   make   more   definite   and 

CERTAIN.  There  is  another  line  of  cases,  which  also  holds 
a  complaint  in  the  form  of  the  common  counts,  is  insuffi- 
cient under  the  procedural  codes,  but  regards  the  proper 

0  Solomon  v.   Vinson,   31   Minn.  i  See     authorities     cited     supra 

205,    206,   17  N.  W.   340;    Pioneer  §  26,  footnote  3. 

Fuel   Co.    V.   Hager,   57   Minn.   76,  2  Among  other  cases,   see   Mer- 

77,  47  Am.  St.  Rep.  574,  58  N.  W.  "tt  v.  Glidden,  39  Cal.  559,  504,  2 

828;    Buchanan   v.    Beck,    15    Ore.  ^m.  Rep.  479;  Quimby  v.  Lyon,  63 

.563,  16  Pac.  422;  White  v.  Willis,  <^^'-  ^^^'  ^^^'  Pleasant  v.  Samuels. 
42  Ore.  288,  70  Pac.  1034;   Keene 
V.  Eldridge,  47   Ore.   182,  82   Pac. 
803. 


114  Cal.  34,  37,  45  Pac.  998;  Shade 
V.  Sisson  Mill  &  Lumber  Co.,  115 
Cal.  357,  47  Pac.  135;  Eachus  v. 
Los  Angeles  (City  of).  130  Cal. 
7  Minor  v.  Baldridge,  123  Cal.  492,  80  Am.  St.  Rep.  147,  62  Pac. 
187,  190,  55  Pac.  783.  829;    Provident    Mut.    Building    & 


L.   Assoc.   V.   Davis,   143   Cal.   253, 
256,  76  Pac.  1034;  Bailey  v.  Aetna 
Indemnity    Co.,    5    Cal.    App.    740, 
9  As  shown  in  footnote  3  to  this      745,    91    Pac.    418;    Laws    v.    Mc- 


8  See  Laws  v.  McCarty,  1  Handy 
(Ohio)   191. 


section.  Carty,  1  Hand.   (Ohio)   191. 

35 


§  29  CODE   PLEADING   AND   PRACTICE.  [Ft.  I, 

procedure,  or  method  of  attack  and  correction,  not  by 
means  of  a  special  demurrer  on  the  ground  of  unintelligi- 
bility  and  uncertainty,^  but  by  motion  to  make  the  aver- 
ments more  definite  and  certain  by  amendment.- 

§  29.     FOKMS  OF  ACTIONS  ABOLISHED,  BUT   NOT  THE  EEME- 

DiEs.  Procedural  codes  abolish  all  forms  and  names  of 
actions,^  but  not  the  remedies  appropriate  to  the  different 
classes  of  actions  at  common  law,^  as  we  will  more  fully 
see  in  a  later  chapter  in  Part  II  of  this  treatise.  The  pro- 
\dsions  of  the  procedural  codes  relating  to  and  restricting 
the  pleading  to  one  form  of  action  in  civil  causes  in  courts 
of  record,  extend  to  the  form  of  the  action,  only,  and  not 
to  the  manner  of  pleading.^  The  inherent  distinctions 
between  legal  and  equitable  causes  of  action,  and  the  ap- 
propriate remedy  for  each,  are  not  changed  ;*  the  substan- 
tial allegations  in  the  complaint  must  be  the  same  as 
under  the  common-law  system  of  judicature.^  To  entitle 
a  party  to  equitable  relief  under  a  procedural  code,  he 
must  show  a  proper  case,  and  one  in  which  he  has  no 
remedy  at  law.^    It  has  been  well  said  that  the  abrogation 

1  See,  supra,  §  27.  Wa  Ching  v.  Constantine,  1  Idaho 

2  Among  other  cases,  see:  ARK.—  2G7;  Zeile  v.  Moritz,  1  Utah  283, 
Ball  V.  Fulton  County,  31  Ark.  379.  286;  Kahn  v.  Old  Telegraph  Min. 
KAN.-Meagher  V.  Morgan,  3  Kan.  Co.,    S    Utah    174,    11    Morr.    Min. 

372,    87    Am.    Dec.    476;    Clark   v.  '^^J';  ^.f '        ^^     .,      ,,    ^,,  ^    _, 

2  Zeile  V.   Montz,   11   Utah   2S3, 

Fensky,  3  Kan.  389;  Water  Power  ^gc;   Kahn  v.  Old  Telegraph  Min. 

Co.v.  McMurray,  24Kan.  62;  Han-  ^^      ^    ^^^j^    ^^^^    ^^    ^^^^_    ^.^^ 

nibal   &   St.   J.  R.  Co.   v.  Fox,  31  Rgp    543 

Kan.    586,   3   Pac.   320;    Jenson   v.  3  jje  Witt  v.   Hays,   2   Cal.   463, 

Lee,  67  Kan.  539,  73  Pac.  72.  NEB.—  468,  56  Am.  Dec.  352. 

Tessier  v.  Reed,  17  Neb.  105,  22  4  Zeile    v.    Moritz,    1    Utah    283, 

N.  W.  225;  Small  v.  Poffenbarger,  286;   Kahn  v.  Old  Telegraph  Min. 

32  Neb.  234,  49  N.  W.  337.    N.  D.—  Co.,  2  Utah  174,  194,  11  Morr.  Min. 

Weber  v.  Lewis,  19  N.  D.  473,  34  Rep.  643. 

L.    R.  A.    (N.   S.)    364,  126  N.  W.  5  Jones  v.  Steamship  Co.,  17  Cal. 

105.    WIS.— Grannis  v.  Hooker,  29  457,  4?5,  79  Am.  Dec.  142;    Miller 

Wis.  65.  V.  Van   Tassel,   24   Cal.   458,   463; 

1  Jones  V.  Steamship  Co.,  17  Cal.  Zeile  v.  Moritz,  1  Utah  283,  286. 

487,  495,  79  Am.  Dec.  142;    Miller  6  De  Witt  v.  Hays,   2  Cal.  463, 

V.  Van   Tassel,   24   Cal.   458,   463;  469,  56  Am.  Dec.  52. 

36 


ell.  III.]  DISTINCTIONS  ABOLISHED.  §  30 

of  the  ancient  forms  of  pleading*,  abolishing  the  names  of 
actions,  and  the  establishment  of  a  uniform  system  of 
remedies  in  civil  actions  in  courts  of  record,  do  not  abro- 
r^ate  the  common-law  distinction  between  Law  and 
Equity;  neither  does  such  reform  in  pleading  require 
that  every  cause  of  action  should  be  set  forth  in  the  same 
terms/ 

§  30.  Artificial  distinctions  and  fictions  abolished. 
From  what  is  said  in  the  foregoing  section  it  is  apparent 
that,  while  the  forms  of  pleadings  have  been  changed,  the 
substantial  allegations  required — the  substance  of  the 
law — have  not  been  affected  by  procedural  codes.  Mere 
technical  and  artificial  distinctions  between  causes,  and 
all  '^ fictions  of  law,"  have  been  abolished.  While  it  is 
true  that,  by  court-construction  not  warranted  by  the 
plain  language  of  the  procedural  codes  in  the  various 
states  and  the  rules  laid  down  in  them  for  the  determina- 
tion of  the  sufficiency  of  a  pleading,  we  have  the  judge- 
made  rule  that  a  complaint  drawn  in  the  form  of  the 
common  counts  of  the  common  law  is  sufficient  under  pro- 
cedural codes  ;^  yet  we  no  longer  have  the  common-law 
distinction  between  actions  of  debt,  actions  of  covenant, 
and  actions  of  assumpsit.-  The  distinction  between  these 
classes  of  action  was  highly  artificial,  having  nothing  of 
substance  to  warrant  them,  and  in  this  were  markedly 
unlike  the  distinction  between  legal  causes  and  equitable 
causes  of  action ;  each  of  these  classes  of  action  was  based 
upon  a  contract,  and  there  never  was  any  substantial 
reason  why  they  should  not  be  classed  under  one  head — 
that  of  contract.  The  substantive  law  may  draw  distinc- 
tions between  written  and  unwritten  contracts;  and  in 
case  of  written  contracts,  between  those  which  are  under 
seal  and  those  which  are  not — although  seals  have  been 

7  Willard's  Eq.  Juris.,  p.  36.  See   Conrad   Nat.   Bank   v.   Great 

1  See  supra,  §§  26-28.  Northern  R.  Co.,  24  Mont.  178, 182, 

•2  Complaint  in  assumpsit  is  not  61  Pac.  1. 
sufficient  to  support  a  judgment. — 

37 


§  30  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

pretty  generally  abolished  in  contracts  made  by  natural 
persons ;  but  as  regards  the  character  of  the  action  and 
the  nature  of  the  remedy,  such  distinctions  drawn  by  the 
substantive  law  are  of  no  importance.  All  are  simply 
actions  upon  contract,  should  be  so  classed,  and  are  so 
classed  in  procedural  codes,  the  artificial  distinctions  be- 
ing swept  away.^ 

8  Bliss  on  Code  Pleading.  §8. 


38 


CHAPTER  IV. 

JURISDICTION IN  GENERAL, 

§  31.  Departments  and  powers. 

§  32.  Judicial  function. 

§  33.  Definition  of  jurisdiction. 

§  34.  What  acts  are  included  within. 

§  35.  Ministerial  officer  not  included. 

§  36.  Essentials  of  jurisdiction.  [• 

§  37.  Jurisdiction  depends  upon  authority.  1 

§  38.  Jurisdictional  defects.  r 

§  39.  Acts  without,  or  in  excess  of,  jurisdiction. 

§  40.  Objection  to  jurisdiction — Must  be  timely.  ' 

§  41.  By  plea  in  abatement. 

§  42.  By  motion. 

§  43.  Presumption  as  to  jurisdiction — Rebuttal. 

§  44.  Consent  of  parties — Confers  jurisdiction  when. 

§  45.  Want  of,  and  irregular  exercise  of,  jurisdiction,  distin- 
guished. 

§  46.  Jurisdiction  at  chambers — In  general. 

§  47.  Acts  which  may  be  done. 

§  48.  Acts  which  may  not  be  done. 

§49.  In  Idaho. 

§  50.  In  Kansas. 

§  51.  In  Montana. 

§  52.  In  Nevada. 

§  53.  In  New  Mexico. 

§  54.  In  Oregon. 

§  55.  In  Washington. 

§  56.  Ouster  of,  and  loss  of,  jurisdiction. 

§  31.  Departments  and  powers.  Under  the  American 
tripartite  system  of  government,  the  various  functions 
and  powers  of  the  general  government  are  divided  be- 
tween the  legislative  department,  the  executive  depart- 

39 


§  31  CODE  PLEADING   AND   PRACTICE.  [Pt,  I, 

ment,  and  tlie  judicial  department.^  Under  tliis  division 
of  functions  and  powers  each  department  has  its  func- 
tions and  powers  assigned  it-  and  is  co-ordinated  in  de- 
gree, to  the  extent  of  the  powers  delegated  to  each ;  and 
each  of  such  departments,  in  the  exercise  of  its  respective 
functions  and  powers,  is  independent  of  the  other  depart- 
ments ;  but  each  act  of  any  department,  rightfully  done, 
is  binding  upon  the  other  departments.^  Neither  depart- 
ment, in  theory  at  least,  may  exercise  the  functions  and 
powers  of  either  of  the  other  departments,  or  infringe 
thereon.^  Hence,  to  authorize  and  empower  the  judicial 
department,  or  any  officer  thereof,  to  act — to  confer 
''jurisdiction" — the  act  required  must  be  a  "judicial 
function. ' '  If  the  act  is  not  a  judicial  function,  there  is  no 
jurisdiction  in  the  premises ;  and  the  question  to  be  deter- 
mined must  be  properly  submitted,  as  required  by  law.^ 
That  is,  the  question  must  be  submitted  in  the  shape  of  a 
case  formally  presented  by  a  party  who  asserts  his  rights 
according  to  the  form  prescribed  by  law^;^  in  this  con- 

1  U.  S.  Const,  Arts.  I,  II,  III;  v.  Superior  Court,  54  Wash.  389, 
Cal.  Const.,  1879,  Art.  III.    All  the      103  Pac.  464. 

other  state  constitutions  have  like  See  notes  69  Am.   Dec.  469;    75 

provisions.  Am.  Dec.  621;  10  Am.  St.  Rep.  161. 

2  Parsons  v.  Tuolumne  County  Delimination  into  departments, 
Water  Co.,  5  Cal.  43,  63  Am.  Dec.  with  separate  functions  appertain- 
76;  Ex  parte  Cox,  44  Fla.  540,  61  ing  to  each  department,  only, 
L.  R.  A.  734;  33  So.  510.  which    functions    neither    of    the 

May   not  exceed   powers  vested  other    departments    may    exercise 

in  it  for  the  sole  reason  that  in  the  nor  encroach  upon,  has  been  said 

judgment  of  the  court,  or  of  the  to  be  theoretical  merely,  and  im- 

trial  judge,  it  is  necessary  to  ex-  possible  of  accomplishment  in  ac- 

ercise  the  power  in  the  adminis-  tual  administration  of  the  aifairs 

tration    of   justice. — State   ex   rel.  of  gc^ernment.     See  Freeman  on 

Skeen  v.  Ogden  Rapid  Transit  Co.,  Public  Utilities,   1912,   §  64. 

38  Utah  242,  112  Pac.  120.  5  Miller's  Lectures  on  the  Const. 

3  8  Fed.  Stats.  Ann.,  p.  285.  of  U.  S.,  1891,  pp.  315-6. 

4  Parsons  v.  Tuolumne  Water  6  Osbom  v.  Bank  of  United 
Co.,  5  Cal.  43,  63  Am.  Dec.  76;  Ex  States,  22  U.  S.  (9  Wheat.)  738. 
parte  Cox,  44  Fla.  540,  61  L.  R.  A.  819,  6  L.  Ed.  204,  222;  approved 
734,  33  So.  510;  State  ex  rel.  Lytle  in  many  subsequent  cases.     See  2 

40 


Ch.  IV.]  JUDICIAL  FUNCTION  OF  COURTS.  §  32 

nection  the  word  "case"'  being  used  in  the  sense  of  an 
*  *  action. '  '^ 

<^  32.    Judicial  function.    The  judicial  function  is 

to  declare  the  law  and  define  the  rights  of  the  parties/  act- 
ing within  the  power  granted  by  the  constitution  or  con- 
ferred by  statute ;  and  this  includes  the  right  to  determine 
what  shall  be  adjudged  or  decreed  between  the  parties 
Iitigant.2  A  determination  of  the  rights  of  an  individual 
under  existing  laws,  is  an  exercise  of  judicial  power  ;^ 
and  an  essential  element  of  judicial  power,  contradistin- . 
guished  from  legislative  power,  is  that  it  requires  the 
ascertainment  of  existing  rights.*  It  is  not  to  be  disputed 
that,  as  a  general  proposition,  the  judicial  function  is  the 
determination  of  controversies  between  parties  litigant  ;^l 
because  a  judicial  inquiry  investigates,  declares,  and  en- 
forces liabilities  as  they  stand  on  present  or  past  facts, 
and  under  laws  supposed  to  already  exist ;  that  is  its  sole 
purpose  and  end.^  Thus,  the  legislature  may  determine 
what  private  property  is  needed  for  public  purposes — 
that  is  a  question  of  political  and  legislative  character; 
but  when  the  taking  has  been  ordered,  then  the  question 
of  compensation  for  the  property  taken  is  judicial ;  it  does 
not  rest  with  the  public  taking  the  property — through 

Rose's  Notes  on  U.  S.  Reps.,  pp.  4  People  ex  rel.  Dean  v.  Board  of 

145-149.  Supervisors    Sacramento    County, 

7  Idem.  122  Cal.  421,  424,  55  Pac.  131. 

„  ~  i     Of    A         ^        ceo  » Title  &  Document  Restoration 

8  See  note  21  Ann.  Gas.  668.  ,    „„„    „^„ 

Co.  V.  Kerrigan,  150  Cal.  289,  319, 

1  Frasher  v.  Rader,  124  Cal.  132,      ^^^  ^^    ^^    ^^^    ^39^  g   l.  r.  a. 

133,  56  Pac.  797;    Marin  Water  &  ^^^   g  ^  ^^^^  gg  p^^   g^g     g^^^  ^j^^^ 

Power    Co.    v.    Railroad    Commis-  Robinson  v.  Kerrigan,  151  Cal.  40, 

sion,  171  Cal.  706,  Ann.  Cas.  1917C,  ^^^   ^21   Am.   St.    Rep.   90,   12   Ann. 

114.  154  Pac.  864.  ^^^     g29,    90    Pac.    129;     Sinking 

2  Rhode  Island  v.  Massachusetts,  pund  Cases,  99  U.  S.  727,  761  sub 
37  U.  S.  (12  Pet.)  657,  718,  9  L.  Ed.  nom.;  Central  Pac.  R.  Co.  v.  Gal- 
1233,  1258.  latin,  25  L.  Ed.  504,  516. 

3  Quinchard  v.  Board  Trustees  6  Prentis  v.  Atlantic  Coast  Line 
Alameda  County,  113  Cal.  664,  669,  R.  Co.,  211  U.  S.  210,  226,  53  L.  Ed. 
45  Pac.  856.  150,  162,  29  Sup.  Ct.  67. 

41 


§  33  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

congress  or  the  state  legislature,  the  representatives  of 
the  public — to  say  what  compensation  shall  be  paid,  or 
even  what  shall  be  the  rule  of  compensation.  The  consti- 
tution having  declared  that  ''just  compensation"  shall  be 
paid,  the  ascertainment  of  what  is  a  just  compensation, 
in  the  particular  case,  is  a  judicial  inquiry.'^ 

§  33.  Definition  of  jurisdiction.  Mr.  Justice  Holmes 
has  w^ell  said  that  jurisdiction,  whatever  else  it  may  mean, 
is  jurisdictio,  in  its  proper  sense  of  authority  to  apply  the 
law  to  the  acts  of  men.^  Jurisdictio  is  an  old  English-law 
term,  derived  from  the  latin  jus  (signifying  law,  right), 
juris  (of  law)  and  dictio,  a  speaking,  declaring,  determin- 
ing; that  is,  authority  to  judge  and  determine,  to  admin- 
ister justice.  According  to  Bracton,  jurisdiction  is 
nothing  more  than  the  having  authority  of  judging  or  of 
administering  justice — that  is,  declaring  the  law — be- 
tween the  parties  to  personal  and  real  actions,  according 
as  they  may  have  been  brought  into  court  by  ordinary 
or  delegated  authority  j^  a  power  introduced  of  common 
right,  by  public  authority,  for  the  public  benefit,  arising 
out  of  the  necessity  of  declaring  the  law.^  In  modern 
phraseology,  and  the  doctrine  of  modern  cases,  jurisdic- 
tion is  the  power  to  hear  and  determine  the  subject-mat- 
ter^ in  controversy  between  two  or  more  parties  litigant  f 

7  Monongahela      Nav.      Co.      v.  narium  vel  delegatam. — Bract,  fol. 

United  States,  148  U.  S.  312,  327,  400b. 

37  L.  Ed.  463,  467,  13  Sup.  Ct.  Rep.  3  Marshalsea,     Case    of    the,     1 

622.     See  Marin  Water  &   Power  Balst.    211,    10    Co.    73a,    77    Eng. 

Co.   V.   Railroad   Commission,   171  Repr.  1041;  Byers  v.  McAuley  (dis. 

Cal.  706,  Ann.  Cas.  1917C,  114,  154  op.  of  Shiras,  J.),  149  U.  S.   608, 

Pac.  864.  628,  37  L.  Ed.  867,  876,  13  Sup.  Ct. 

1  Wedding  v.  Meyler,  192  U.  S.  Rep.  906. 

573,  584,  48  L.  Ed.  570,  575,  24  Sup.  4  Judicial   power  over  the  class 

Ct.  Rep.  322.  of    cases     before     it,     determines 

2  Nihil  aliud  est  jurisdictio  quam  court's  jurisdiction  of  the  cause.^ 
habere  autioritatem  judicandi  sive  Richardson  v.  Ruddy,  15  Idaho  488, 
jiis  dicendiinter  partes  de  actioni-  98  Pac.  842. 

bus     personarum     et     rerum,     se-  5  Dahlgren  v.  Superior  Court,  8 

cundum  quod  deductae  fuerint  in  Cal.  App.  622,  97  Pac.  681;  In  re 
judicium    per    auctoritatem    ordi-      Hatch,  9  Cal.  App.  333,  99  Pac.  398; 

42 


ch.  IV.] 


JURISDICTIOX    DEFINED. 


§33 


aiul,  speaking  in  a  broad  sense,  must  be  exercised  in  one 
of  two  modes — in  personam*^  or  in  rem.'^ 


Lange  v.  Superior  Court,  11  Cal. 
App.  1,  103  Pac.  908;  Twine  v. 
Carey,  2  Olila.  249,  37  Pac.  1096; 
Myers  v.  Berry,  3  Okla.  612,  41 
l^ac.  580;  Parker  v.  Lynch,  7  Okla. 
(■.:U,  56  Pac.  1082;  Beckfinger  v. 
J'oster,  10  Okla.  488,  62  Pac.  799, 
aHirmed,  190  U.  S.  116,  47  L.  Ed. 
975,  23  Sup.  Ct.  Rep.  836;  Scott  v. 
Sanford  (Dred  Scott  Case),  60 
U.-  S.  (19  How.)  393,  473,  15  L.  Ed. 
691,  728;  Riggs  v.  Johnson  County, 
73  U.  S.  (6  Wall.)  166,  187,  18 
L.  Ed.  768,  773;  Overby  v.  Gordon, 
177  U.  S.  214,  221,  44  L.  Ed.  741, 
744,  20  Sup.  Ct.  Rep.  603. 

Authority  of  law  to  do  the  par- 
ticular act. — Ex  parte  Justus,  3 
Okla.  Cr.  Ill,  25  L.  R.  A.  (N.  S.) 
183,  104  Pac.  933;  Ex  parte  Wil- 
kins,  7  Okla.  Cr.  422,  115  Pac.  1118. 

See,  also,  cases  cited  in  "Words 
and  Phrases,"  1st  and  2d  series, 
tit.  Jurisdiction. 

ii  Jurisdiction  of  actions  in  per- 
sonam, although  the  subject-mat- 
ter of  the  action  is  the  compelling 
defendant  to  transfer  land  or  in- 
terest in  land  situated  in  another 
state  to  the  plaintiff. — Gates  v. 
Paul,  117  Wis.  170,  94  N.  W.  55. 

Case  in  personam,  where  there 
are  adverse  parties,  court  must 
have  jurisdiction,  both  over  the 
subject-matter  and  the  parties. — 
Grignon  v.  Astor,  43  U.  S.  (2  How.) 
:',19,  11  L.  Ed.  283.  See  Bearing  v. 
Bank  of  Charleston,  5  Ga.  497,  518, 
48.  Am.  Dec.  300,  316;  Palmer 
V.  Oakley  (Arguendo),  2  Doug. 
(Mich.)  483,  489,  47  Am.  Dec.  41, 
67. 

Thus,  a  judgment  in  personam 
against  a   nonresident   defendant, 


served  but  not  appearing,  is  a 
nullity.  —  Bearing  v.  Bank  of 
Charleston,  5  Ga.  497,  518,  48  Am. 
Dec.  300,  316.  See  Adams  v.  Lamar, 
8  Ga.  83;  Reynolds  v.  Hawley  Es- 
tate Co.,  116  Ga.  495,  42  S.  E.  796. 

See  notes  48  Am.  Dec.  589;  56 
Am.  Dec.  282;  58  Am.  Dec.  750; 
68  Am,  Dec.  590;  21  Am.  St.  Rep. 
384;  6  L.  R.  A.  179;  16  L.  R.  A. 
321. 

7  Overby  v.  Gordon,  177  U.  S. 
214,  221,  44  L.  Ed.  741,  744,  20  Sup. 
Ct.  Rep.  603. 

Cases  in  rem  only  question  of 
jurisdiction  is  power  of  court  over 
the  thing  in  action,  and  is  irre- 
spective of  the  parties  to  the  suit. 
—Grignon  v.  Astor,  43  U.  S.  (2 
How.)  319,  11  L.  Ed.  283;  Spencer 
v.  Shuhan,  19  Minn.  343. 

Thus,  in  proceedings  to  sell  real 
estate  of  insolvent  (Beauregard  v. 
New  Orleans,  City  of,  U.  S.,  18 
How.,  503,  15  L.  Ed.  472)  or  of  a 
decedent  (Howard  v.  Moore,  2 
Mich.  234;  Lofferty  v.  People's 
Sav.  Bank,  76  Mich.  51,  43  S.  W. 
39;  Spencer  v.  Sheehan,  19  Minn. 
343),  and  the  like,  is  in  rem,  and 
order  of  sale  valid  and  title  good, 
where  the  court  had  jurisdiction 
to  render  the  judgment  (Baily  v. 
Boe,  3  Fed.  916) ;  but  the  sale  of 
additional  property  than  that  au- 
thorized by  the  decree  is  void  and 
the  court  has  no  jurisdiction  to 
confer  title  by  confirmation  (Chap- 
man V.  Branch,  72  W.  Va.  61,  78 
S.  E.  239) ;  and  in  the  case  of 
decedents,  the  heirs  are  not  bound. 
—Grignon  v.  Astor,  43  U.  S.  (2 
How.)  319,  11  L.  Ed.  283. 

43 


§§  34,  35         CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

§  34.  What  acts  are  included  within.  The  word 
"jurisdiction,"  jus  dicere,  is  a  term  of  comprehensive 
import,  including  every  kind  of  judicial  action  upon  the 
subject-matter  of  the  controversy,  from  the  inauguration 
of  the  cause  to  its  completion ;  that  is  to  say,  it  means 
not  only  authority  to  act  judicially,^  to  hear  and  decide 
and  determine  controversies,-  make  a  judicial  decision,^ 
but  also  the  power  to  carry  the  judgment  pronounced,  or 
decree  rendered,  into  effect  through  proper  process.^ 

§  35.    Ministerial  officer  not  included.     While 

jurisdiction  includes  all  legal  judicial  acts  of  the  court,  or 
of  a  judicial  officer,  in  the  course  of  the  institution  and 
conduct  of  a  cause,  including  its  disposition  and  the  en- 
forcement of  the  decree  or  judgment^ — for  any  act  or 
movement  by  the  court  is  necessarily  the  exercise  of  juris- 
diction,- whether  the  act  done  is  one  fixed  by  law  or  left  to 
the  choice  of  the  tribunal,  where  the  instrumentality  is 
merely  auxiliary  to  the  exercise  of  judicial  jjower,  and 
operates  on  persons  and  things  by  \'irtue  of  that  power, 
only;^  but  ministerial  officers  are  not  included,  and  their 
acts  are  not  to  be  regarded  as  the  acts  of  the  court  in  the 
exercise  of  its  judicial  poster.  Thus,  the  entering  of 
judgment  by  default  is  a  judicial  act,  which  can  not  be 

1  King  V.  Poole,  36  Barb.  (N.  Y.)  24  Pac.  373;  Comstock  Milling  & 
244.  Min.  Co.  v.  Allen,  21  Nev.  325,  31 

2  Supra,  §  33.  Hua  v.  Dodd,  39  ^^^-  ^^4;  Withers  v.  Patterson, 
N.  J.  Eq.  (12  Stew.)  173,  179;  King  ^7  Tex.  491,  495.  86  Am.  Dec.  643; 


V.  Poole,  36  Barb.  (N.  Y.)  244. 


Rhode  Island  /V.  Massachusetts,  37 
U.  S.   (12  Pet.)    657,  718,  9   L.   Ed. 

3  Browning  V.  Wheeler,  24  Wend.      1233,     i258;      Riggs     v.     Johnson 
(N.  Y.)  258,  259,  35  Am.  Dec.  617.      County.    73    U.    S.    (6    Wall.)    166, 

4  Ex   parte  Walker,   25   Ala.   81,      187,  18  L.  Ed,  768,  773. 
91;    Kennedy    v.    Homer,    19    Cal.  1  See,  supra,  §  34. 

374;  Robertson  v.  State,  109  Ind.  •  2  Grignon  v.  Astor,  43  U.  S.  (2 
79,  10  N.  E.  582;  Dillon  v.  Heller,  How.)  319,  338,  11  L.  Ed.  283,  289; 
39  Kan.  599,  18  Pac.  693;  Hopkins  In  Re  Bogart,  2  Sawy.  396,  401,  7 
V,  Com.,  44  Mass.  (3  Mete.)  462;  Ata.  L.  Rev.  749,  Fed.  Cas.  No.  1596 
Johnson  v.  Jones,  2  Neb.  126,  135;  3  See  Underwood  v.  McDuiTee,  15 

Alexander  v.  Archer,  21  Nev.   22,      Mich.  361,  368,  93  Am,  Dec.  194. 

44 


Ch.  IV.]  ESSENTIALS  OF  JURISDICTION,  §  3G 

performed  by  a  ministerial  officer,  and  a  statute  provid- 
ing that  a  default  judgment  may  be  entered  by  the  clerk 
of  the  court  in  vacation,  is  invalid;^  but  the  entering  of 
judgment  on  confession  is  a  ministerial  and  not  a  judicial 
act,  and  may  be  done  by  the  clerk  of  the  court.^  Minis- 
terial officers  of  the  court,  in  addition  to  the  clerk,  com- 
prise masters  in  chancery,*'  referees,"^  and  the  like,  whose 
powers  and  authority  are  delegated  to  them  by  the  court, 
but  whose  acts  must  be  referred  to  and  approved  by  the 
court  before  they  become  judicial  in  nature  and  effective. 

§  36.  Essentials  of  jurisdiction.  We  have  already 
seen  that  jurisdiction  consists  in  the  authority  or  power 
to  adjudicate  between  the  parties  litigant  concerning  the 
subject-matter  in  controversy  in  a  given  case,^  To  con- 
stitute this  authority  or  power,  three  things  are  essential, 
to  wit:  (1)  The  court  must  have  cognizance  of  the  class  of 
cases  to  which  the  one  to  be  adjudicated  belongs ;  (2)  the 
proper  parties  must  be  duly  in  court,  and  (3)  the  point 
decided  must  be,  in  substance  and  effect,  within  the  issue. ^ 

4  Hall  V.  Marks,  34  111.  362.  Farms  Co.,  35  Minn.  380,  29  N.  W. 

5  Lathrop  v.  Snyder,  17  Wis.  113.  49;  Bond  v.  Welcome,  61  Minn.  49, 

6  See  Herds  v.  Burton,  79  111.  63  N.  W.  3;  Nordeen  v.  Buck,  79 
500;    King  v.   Hopkins,    57   N.    H.  Minn.  352,  82  N.  W.  644. 

346.  1  See,  supra,  §  33. 

T  Underwood     v.     McDuffee,     15  2  Gille  v.  Emmons,  58  Kan.  118, 

Mich.   361,   363,   93   Am,    Dec,   194.  62  Am.  St.  Rep.  609,  48  Pac.  569; 

See  Simmons  v.  Morrison,  13  App.  Hope  v.  Blair,  105  Mo.  85,  24  Am. 

Dec.  161.  St.  Rep,  366,  16  S.  W.  595;  Sloan  v. 

Compulsory    reference    provided  Byers,  37  Mont.  503,  97  Pac.  855; 

by  statute  is  in  conflict  with  con-  Munday  v.  Vail,  34  N.  J.  L.  (5  Vr.) 

stitutional  provision  guaranteeing  418;   St.  Lawrence  Boom  Mfg.  Co. 

right  of  trial  by  jury.— St.  Paul  &  v.  Holt,  51  W.  Va.  352,  41  So.  351; 

S.  C.  R.  Co.  v.  Gardner,  19  Minn.  Reynolds    v.    Stockton,    140    U.    S. 

132,  134,  18  Am,  Rep,  334.  254,  268,  35  L,  Ed,  464,  469,  11  Sup. 

See  notes   13    L,   R,   A,    (N.   S.)  Ct.  Rep.  773,  777. 

146;  3  Eng.  Rul.  Gas.  405.  In  federal  courts  two  things  are 

Court  can  not  submit  to  referee  necessary  to  jurisdiction,  whether 

an  action  purely  at  law,  on  objec-  original  or  appellate,  in  the  infer- 

tion  of  litigant. — Russell  v.  Ault,  lor  courts,  to  wit:    (1)  The  consti- 

12  Idaho  789,  13  L.   R.  A,   (N.  S.)  tution    must    have    given    to    the 

146,  88  Pac.  413;  Fair  v.  Stickney  court  the  capacity  to  take  it,  or 

45 


§  .37  CODE   PLEADING  AND   PRACTICE.  [Pt.  I, 

Should  the  court  go  out  of  or  beyond  its  appointed 
sphere,^  that  any  action  or  judgment  is  void,^  is  estab- 
lished by  a  multitude  of  authorities.  Courts  are  mere 
instruments  of  the  law,  and  all  their  acts  and  proceedings 
must  conform  to  the  law  conferring  upon  them  the  au- 
thority and  power  to  act  in  the  premises.  Judicial  power 
is  never  exercised  for  the  purpose  of  giving  effect  to  the 
will  of  the  judicial  officer,  but  for  the  purpose  of  giving 
effect  to  the  will  of  the  legislature ;  that  is,  for  the  sole 
purpose  of  enforcing  and  administering  the  law  on  a 
proper  occasion.^  By  becoming  parties  litigant  persons 
do  not  place  themselves,  for  all  purposes,  under  the  con- 
trol of  the  court;  it  is  only  over  issues  which  they  choose 
to  present  for  determination  that  the  court  acquires  any 
authority,*^  and  the  action  and  judgment  of  the  court  must 
be  confined  to  the  issues  raised;  it  is  only  by  virtue  of 
these  issues  that  the  court  acquires  control  and  has  power 
and  authority  to  decide  and  determine.'^ 

§  37.    Jurisdiction  depends  upon  authority.    The  jur- 
isdiction of  a  court  in  any  given  cause  depends  upon  its 

(2)  an  act  of  Congress  must  have  22   U.    S.    (9  Wheat.)    738,   866,    6 

supplied  it. — Nashville  v.   Cooper,  L.  Ed.  204,  234. 
73  U.  S.   (6  Wall.)   247,  18   L.  Ed.  c  Fictitious  actions  will   not  be 

851.    See  Nashville,  C.  &  St.  L..  R.  entertained    by   the    courts,    when 

Co.  V.  Taylor,  86  Fed.  176;  United  their  true  characters  are  made  to 

States  V.  Mar  Ying  Yuen,  123  Fed.  appear;  and  a  judgment  rendered 

160.  in  such  a  case,  when  its  true  char- 

3  Acts   without  or   in    excess   of  ^^^^^  is  shown,   determines  noth- 

jurisdictions,   are   discussed,   post,  ing.— O'Connor   vi   Irvine,   74   Cal. 

§  39  435,    441,    16    Pac.    236;    Lord    v. 

,!,.,,  ^  ^„  ^^        ,,„       Veasie,  49  U.  S.  (8  How.)  251,  255, 

4Gille  v.  Emmons,  58  Kan.  118,      ^„  ,     _.    ..„„    .„„.     „,       ,   ' 

/.«  .        «.    „        n^^    .o  ^       ^„«  12  L.  Ed.  1067,  1069;   Cleveland  v. 

62  Am.  St.  Rep.  609,  48  Pac.  569.  ^,        ,      ,.       «<-   tt    a     /i    t:,,     i  ^ 

Chamberlain,   66   U.   S.    (1   Black) 

"Wliere  jurisdiction  does  not  ex-  4^9    425    17  l.  Ed.  93. 

ist,  every  step  taken  without  jt  is  7  Munday    v.   Vail,   34    N.    J.    L. 

invalid,  and  the  parties  and  court  (5  Vr.)  418.   See  Gore  v.  Stackpole, 

may  be  made  liable  in  trespass."—  i  dow.   18,  30,   3  Eng.  Repr.   607, 

1  Smith's  Leading  Cases  (Hare  v.  .  eil;  Gifford  v.  Hart,  1  Sch.  &  Lef. 

Wallace's  notes),  pp.  1132,  1135.  408;   Curtis  v.  Price,  12  Ves.  102, 

5  Osbom  V.  United  States  Bank,  33  Eng.  Repr.  35,  39. 

46 


ch.  IV.] 


JURISDICTIONAL  DEFECTS. 


§38 


right  to  hear  and  determine  the  cause,^  not  upon  its  deci- 
sion upon  the  merits  of  a  cause  brought  before  it,  or  upon 
the  fact  that  the  record-  of  the  cause  shows  such  a  state 
of  facts  as  to  warrant  the  exercise  of  the  authority.^^ 
When  jurisdiction  has  once  attached  over  the  subject- 
matter  or  the  person,  the  court  has  power  and  authority 
to  decide  every  question  which  the  cause  presents  ;■'  and 
whether  its  decision  be  correct^  or  otherwise,  until  re- 
versed, it  is  binding  upon  every  other  court.^ 

§  38.  Jurisdictional  defects.  In  a  general  sense,  a 
defect  is  a  fault  or  imperfection;  a  want  of,  or  absence 
of,  something  necessarj^  for  completion  or  perfection,  or 
for  efficiency  for  the  purpose  for  which  designed  or  in- 
tended.^ Some  inherent  condition  of  a  paramount,  or  a 
quasi-paramount,  nature  which  unfits  the  thing  involved 


1  Le  Roy  v.  Clayton,  2  Sawy.  493, 
499,  Fed.  Cas.  No.  8268.  See  Ken- 
dall V.  United  States,  37  U.  S.  524, 
G33,  9  L.  Ed.  1181,  1224;  Pullan  V. 
Kinslnger,  2  Abb.  U.  S.  94,  103, 
Fed.  Cas.  No.  11463. 

'2  Docket  entries  are  only  evi- 
dence of  the  substantive  fact  of 
jurisdiction.  Jurisdiction  is  abso- 
lutely independent  of  docket  en- 
tries, and  can  neither  be  given  nor 
taken  away  by  them. — Cunning- 
ham V.  Dixon,  1  Marv.  (Del.)  163, 
41  Atl.  519. 

3  Sheldon  v.  Newton,  8  Ohio  St. 
499;  Voorhees  v.  Jackson  ex  dem. 
Bank  of  United  States,  35  U.  S. 
(10  Pet.)  449,  473,  9  L.  Ed.  490, 
501;  Pullan  v.  Kinsinger,  2  Abb. 
U.  S.  94,  103,  Fed.  Cas.  No.  11463. 

4  Grignon  v.  Astor,  44  U.  S.  (3 
How.)  319,  11  L.  Ed.  283.  See 
Taylor  v.  Hulett,  15  Idaho  265,  19 
L.  R.  A.  (N.  S.)  535,  97  Pac.  37; 
Wayne  v.  Alspach,  20  Idaho  144, 
116  Pac.  1033;   Crutcher  v.  Black, 


19  Okla.  24G,  14  Ann.  Cas.  1029,  91 
Pac.  895;  Miller  v.  Hall,  64  Ky.  (1 
Bush)  233;  Palmer  v.  Oakley,  2 
Doug.  (Mich.)  491,  47  Am.  Dec.  68; 
Sutherland  v.  De  Leon,  1  Tex.  309, 
46  Am.  Dec.  107;  Dickinson  v. 
Huntington,  109  C.  C.  A.  523,  185 
Fed.  709. 

5  Central  Pac.  R.  Co.  v.  Board  of 
Equalization,  43  Cal.  365,  368; 
Shearer  v.  Superior  Court,  96  Cal. 
653,  31  Pac.  565;  People  v.  Tal- 
madge,  194  111.  67,  61  N.  E.  1049; 
State  ex  rel.  Johnson  v.  Withrow, 
108  Mo.  1,  8,  18  S.  W.  41;  Watkins, 
ex  parte,  32  U.  S.  (7  Pet.)  568,  572, 
8  L.  Ed.  7S6,  789;  United  States  v. 
Maney,  61  Fed.  140,  142. 

6  Hibernia  Sav.  &  L.  Soc.  v. 
Lewis,  117  Cal.  577,  47  Pac.  602,  49 
Pac.  714;  De  Graw  v.  De  Graw,  7 
Mo.  App.  127;  Grignon  v.  Astor,  44 
U.  S.  (3  How.)   319,  11  L.  Ed.  283. 

1  Bliven  v.  Sioux  City,  City  of, 
85  Iowa  346,  52  N.  W.  246;  Hancy- 
Campbell  Co.  v.  Preston  CreameiT 
Assoc,  119  Iowa  188,  93  N.  W,  297. 


47 


§  39  CODE  PLEADING  ANT)  PRACTICE.  [Pt.  I. 

for  the  purpose  for  whicli  it  was  intended  or  designed  ;- 
or  some  inadaptation  to  the  uses  for  which  it  was  in- 
tended.^ The  fault,  condition  or  inadaptation  may  apply 
to  an  act  as  well  as  to  an  instrument,  a  machine,  a  road, 
and  the  like ;  and,  when  applied  to  an  act  required  to  be 
done,  may  consist  in  insufficiency,  informality  or  irregu- 
larity, or  in  a  total  inadequacy  of  act  or  proceedings  in 
the  commencement  of  an  action  in  court.*  When  applied 
to  court  proceedings,  defects  are  of  two  classes,  to  wit: 

(1)  Remedial — mere  informalities  or  irregularities,^  and 

(2)  remediless,  or  jurisdictional  defects.  The  fonner 
may  be  remedied,  the  latter  can  not  be.  Mr.  Justice 
McKenna  has  well  said  that  ''there  may  be  in  legal  pro- 
ceedings defects  which  are  not  mere  informalities  or 
irregularities,  but  so  vital  in  their  character  as  to  be 
beyond  the  help  of  retrospective  legislation;^  such  defects 
are  called  jurisdictional."^ 

§  39.  Acts  without,  or  in  excess  of,  jurisdiction.  It 
follows,  on  principle,  from  what  has  already  been  said 
regarding  the  nature  of  jurisdiction,  that  the  operation 
and  effect  of  every  judgment  or  decree  must  depend  upon 
the  authority  and  power  of  the  court  in  the  premises;  on 

2  Kansas  City,  M.  &  B.  R.  Co.  v.  they  are  in  their  nature  irregulari- 
Burton,  97  Ala.  240,  12  So.  88.  ties   only,    and    do   not   extend   to 

3  Id.  Heske  V.  Samuelson,  12  matters  of  jurisdiction,  is  not  void 
Q.  B.  Div.  30,  53  L.  J.,  Q  B  D  45,  °°  constitutional  grounds,  unless 
49  L.  T.  474;  Yarmouth  v.  France.  ^^P^^^sl^    forbidden."-Cooley    on 

19  Q.  B.  Div.  647,  57  L.  J.,  Q.  B.  7,      ^°°"*-  ^*^-  ^^j-^  ^^'^  P"  ^^'^ 

'}c  -nr   -n    90-1  ^  Enumeration  of  cases  in  which 

the  legislature  may  pass  curative 

4  Irregularities  which  are  such  a  statutes  validating  proceedings  de- 
violation  of  established  practice  or  fgctive  for  irregularities,  is  found 
principal  in  regard  to  the  exercise  jq  poster  v.  Foster,  129  Mass.  559. 
of  judicial  authority  as  to  interfere  g^e,  also,  Cooley  on  Const.  Lira, 
with  the  efficiency  of  judi(yal  in-  (^^^^^  ^^j  )^  pp  462  et  seq. 
strumentalities.  is  jurisdictional.—  ^  Sarnaca  Land  &  T.  Co.  v.  Con- 
Harrigan  v.  Gilchrist,  121  Wis.  127,  ^^oller  of  New  York,  177  U.  S.  318. 
99  N.  W.  909.  .33Q^  20  Sup.  Ct.  Rep.  G42.  sub  nom. 

5  "Retrospective  statute  curing  Samaca  Land  &  T.  Co.  v.  Roberts, 
defects  in  legal  proceedings,  where  44  L.  Ed.  786,  792. 

48 


ch.  IV.]  OBJECTION    TO   JURISDICTION-.  §  40 

its  jurisdiction  over  the  parties  to  the  action  and  over  the 
subject-matter  to  be  determined.^  When  there  is  clearly 
no  jurisdiction  over  the  person  of  the  parties  or  over  the 
subject-matter  submitted,  any  authority  exercised  is 
usurped  authority,-  and  any  judgment  pronounced  or 
decree  rendered  is  a  nullity;^  and  this  is  true  equally 
where  the  act  was  in  excess  of  the  jurisdiction  or  when 
there  was  an  entire  want  of  jurisdiction.^  Jurisdiction 
of  the  court  is  always  a  vital  question,  which  should  be 
first  determined.^  In  some  cases  the  matter  of  jurisdic- 
tion depends  as  well  upon  the  state  or  situs  of  the  res,  as 
upon  the  constitution  of  the  court  itself.® 

§  40.  Objection  to  jurisdiction — Must  be  timely. 
Any  objection  to  the  jurisdiction  of  the  court  over  the 
person  of  the  parties  or  over  the  subject-matter  of  the 
action  or  the  res,  can  be  taken  at  any  time,  unless  waived 
by  act  of  the  party;  but  where  the  jurisdiction  of  the 
court  is  merely  defective  by  reason  of  remedial  faults,^ 
objection  to  the  jurisdiction  for  that  reason  must  be 
timely  made,  else  it  will  be  deemed  to  have  been  waived. - 
Thus,  it  has  been  said  that  where  the  merits  of  a  cause 
have  been  decided  by  an  intermediate  court,  and  an  appeal 
taken  to  a  higher  court,  where  there  is  a  reversal  or  an 
affirmance  and  a  mandate  sent  dowTi  to  execute  the  judg- 

1  Rose  V.  Himley,  8  U.  S.  (4  Cr.)  caused  by  the  construction  of  a 
241,  269,  2  L.  Ed,  608,  616;  Scott  v.  railway,  properly  refused  to  enter- 
Sandford  (Dred  Scott  Case),  60  tain  other  objections  raised,  or  to 
U.  S.  (19  How.)  393,  427,  15  L.  Ed.  determine  what  the  rights  of  the 
691,  709.  parties    would    be    if    the    matter 

2  Bradley  v.  Fisher,  80  U.  S.  (13  were  properly  presented  to  the 
Wall.)  335,  351,  20  L.  Ed.  646,  650.  court    for    determination.— Stough 

3  Gille  V.  Emmons,  58  Kan.  118,  v.  Chicago  &  N.  W.  R.  Co.,  71 
62  Am.  St.  Rep.  609,  48  Pac.  569.  Iowa  641,  33  N.  W.  149. 

4  See,  ante,  §  36,  footnote  2;  §  37.  «  Rose  v.  Himley,  8  U.  S.  (4  Cr.) 

5  SeeReilly  v.  Dougherty,  60  Md.  241,  269,  2  L.  Ed.  608,  616. 
278.  1  See,  supra,  §  38,  footnote  4. 

Court  having  determined  it  had  2  As   to   waiver  of  objection   to 

no  jurisdiction  upon  an  appeal  jurisdiction,  see,  post,  §  41,  foot- 
from    an   assessment   of   damages      note  4. 

I  Code  PI.  and  Pr.— 4  4.9 


§  41  CODE   PLEADING  AND   PRACTICE.  [  Pt.  I, 

ment  of  the  court  of  appeal  it  is  thereafter  too  late  to 
question  the  jurisdiction  of  the  subordinate  court  in  the 
first  instance  or  under  the  mandate." 

§  41.  By  FLEA  IN  ABATEMENT.  Objcctlon  to  the  jur- 
isdiction of  the  court  is  to  be  taken  by  plea  in  abatement, 
or  other  pleading  presenting  that  issue  only  ;^  for  it  has 
ever  been  a  canon  of  pleading,  that  matters  which  apper- 
tain solely  to  the  jurisdiction  of  the  court,  or  to  the  dis- 
ability of  a  suitor,  should  never  be  blended  mth  questions 
which  enter  essentially  into  the  merits  of  the  controversy, 
because  defenses  involving  inquiries  into  the  subject- 
matter  of  the  action  imply,  nay  admit,  the  competency  of 
the  parties  to  institute  such  inquiries,  and  the  authority  of 
the  court  to  adjudicate  upon  them- — and  it  is  thought  that 
this  rule  will  hold  good  under  the  reformed  systems  of 
pleading.  Pleas  to  the  jurisdiction,  or  in  abatement,  are 
inconsistent  with  those  which  appertain  to  the  merits  of 
the  controversy,  and  are  tried  upon  different  views  as  to 
the  relations  of  the  parties  or  of  the  court,  and  the  results 
in  each  case  are  different.^  After  a  defense  going  to  the 
merits  of  the  cause,  pleas  to  the  jurisdiction  and  in  abate- 
ment become  immaterial,  and  are  deemed  to  have  been 
waived.^ 

3  Skillen  v.  May,  10  U.  S.  (6  Cr.)  388;  Adams  v.  White,  2  Pitsb.  Rep. 

267,  3  L.  Ed.  220;  Noonan  v.  Brad-  21,  Fed   Cas.  No.  68. 

ley,  79  U.  S.    (12  Wall.)    121,  129,  2  Shepard  v.  Graves,  55  U.  S.  (14 

20  L.  Ed.  279,  281;  Riverdale  Cot-  How.)  505,  510,  14  L.  Ed.  518,  520; 

ton   Mills   V.   Alabama  &   Georgia  Terry  v.  Davy,  46  C.  C.  A.  143,  107 

Mfg.    Co.,    198    U.    S.    188,    197,    49  Fed.  52. 

L.  Ed.  1008,  1016,  25  Sup.  Ct.  Rep.  Plea    to    jurisdiction,    made    by 

629;    United  States  v.  Morse,  218  plea  in  abatement,  to  be  separately 

U.  S.  506,  54  L.  Ed.  1128,  31  Sup.  tried.— Imperial    Refining    Co.    v. 

Ct.  Rep.  37,  21  Ann.  Cas.  1^2.  Wyman,  38  Fed.  574,  576,  3  L.  R.  A. 

See,   also,   authorities,   1   Rose's  503,  505. 

Notes  on  U.  S.  Reps.,  pp.  656-658.  3  Id.   O'Brien  v.   State,  126   Md. 

1  Shepard  v.  Graves,  55  U.  S:  (14  282,  94  Atl.  1039. 
How.)  505,  510,  14  L.  Ed.  518,  520;  '        4  Newport    News    &    M.    V.    R. 

Sharon  v.   Hill,   10   Sawy.   668,   26  Co.   v.   Thomas,    96   Ky.    613,    615, 

Fed.    723,   11    Sawy.    366,   26    Fed.  29     S.     W.     437,     438;     Tyler     v. 

50 


ch.  I/.] 


PRESUMPTION    OF    JURISDICTION". 


§§  42,  43 


§  42.  By  motion.  In  those  cases  in  wliicli  an  ob- 
jection to  the  jurisdiction  of  the  court  is  for  a  cause  ap- 
pearing upon  the  face  of  the  complaint,  it  may  be  taken  by 
motion ;  but  in  all  other  cases  it  must  be  by  a  special  plea.^ 

§  43.  Peesumption  of  jurisdiction — Rebuttal..  Juris- 
diction of  the  court  is  generally  presumed  in  the  case  of 
superior  courts,  or  courts  having  a  general  jurisdiction, 
where  want  of  jurisdiction  does  not  appear  upon  the  face 
of  the  record;^  and  a  judgment  by  a  court  of  competent 


Murray,  57  Md.  438,  439;  Davis 
V.  Lathrop,  21  Blatchf.  165,  13  Fed. 
566;  Shepard  v.  Graves,  55  U.  S. 
(14  How.)  512,  14  L.  Ed,  521;  Scott 
V.  Sandford  (Dred  Scott  Case),  60 
U.  S.  (19  How.)  393,  519,  15  L.  Ed. 
691,  748;  De  Sobry  v.  Nicholson, 
70  U.  S.  (3  Wall.)  420,  423,  18 
L.  Ed.  263,  264;  Wittemore  v.  Mal- 
comson,  28  Fed.  606;  Imperial  Re- 
fining Co.  v.  Wyman,  38  Fed.  574, 
576,  3  L.  R.  A.  503,  505;  Butchers' 
&  Drovers'  Stock-yards  Co.  v. 
Louisville  &  N.  R.  Co.,  14  C.  C.  A. 
290,  67  Fed.  40;  Lehigh  Valley  Coal 
Co.  V.  Yensavage,  134  C.  C.  A.  275, 
218  Fed.  556;  Charlotte  v.  Atlantic 
Bitulithlc  Co.,  228  Fed.  456,  464, 
143  C.  C.  A.  38. 

1  Desert  King  Min.  Co.  v.  Wede- 
kind,  110  Fed.  873,  877,  and  au- 
thorities cited. 

Motion  to  dismiss  a  cause  is  not 
analogous  to  a  plea  to  the  Juris- 
diction.— Rhode  Island  v.  Massa- 
chusetts, 37  U.  S.  (12  Pet.)  657, 
718,  9  L.  Ed.  1233,  1258. 

1  See:  ARIZ. — Federico  v.  Han- 
cock, 1  Ariz.  511,  514,  25  Pac.  650. 
CAL. — De  Johnson  v.  Sepulveda,  5 
Cal.  149;  Grewell  v.  Henderson,  7 
Cal.  290;  Nelson  v.  Mitchell,  10 
Cal.  93;  Carpentier  v.  Oakland, 
City    of,    30    Cal.    439;     Sharp    v. 


Daughney,  33  Cal.  505;  Barrett  v. 
Carney,  33  Cal.  530,  537;  Hahn  v. 
Kelly,  34  Cal.  391,  402,  94  Am.  Dec. 
742,  746;  Ryder  v.  Cohen,  37  Cal. 
87;  Ohleyer  v.  Bunce,  65  Cal.  544, 
546,  4  Pac.  549;  Batchelder  v. 
Baker,  79  Cal.  266,  268,  21  Pac. 
754;  Eichhoff,  In  matter  of  estate 
of,  101  Cal.  600,  36  Pac.  11;  Sim- 
mons V.  Threshour,  118  Cal.  100, 
102,  50  Pac.  312;  Twombley,  Es- 
tate of,  120  Cal.  350,  351,  52  Pac. 
815;  Wood  v.  Jordan,  125  Cal.  261, 
262,  57  Pac.  997;  Grannis  v.  Su- 
perior Court,  143  Cal.  630,  77  Pac. 
647;  Parsons  v.  Weis,  144  Cal.  410, 
77  Pac.  1007;  Livermore  v.  Ratti, 
150  Cal.  458,  461,  89  Pac.  330; 
Davis,  Estate  of,  151  Cal.  318,  324, 
121  Am.  St.  Rep.  105,  86  Pac.  185; 
Del  Campo  v.  Camarillo,  154  Cal. 
647,  98  Pac.  1040;  Page  v.  Garver, 
5  Cal.  App.  385,  90  Pac.  482;  West- 
ern Lumber  &  Mill  Co.  v.  Pacific 
Ornamental  Decorating  Co.,  13  Cal. 
App.  4,  S,  108  Pac.  891.  COLO.— 
Salisbury  v.  La  Fitte,  22  Colo.  App. 
90,  123  Pac.  124;  Empire  Ranch  & 
Cattle  Co.  V.  Millett,  24  Colo.  App. 
464,  135  Pac.  127.  IND.— American 
Mut.  L.  Ins.  Co.  v.  Mason,  159  Ind. 
19,  64  N.  E.  525.  KAN.— Carey  v. 
Reeves,  32  Kan.  718,  5  Pac.  22; 
English  V.  Woodman,  40  Kan.  7")2, 
21  Pac.  283.  MASS.— Kelly  v.  Kelly, 


51 


§43 


CODE  PLEADING  AND  PRACTICE. 


[in.  T, 


jurisdiction  of  the  parties  and  the  subject-matter  or  res, 
raises  a  presumption  that  facts  necessary  to  confer  juris- 
diction were  proved.-    But  this  presumption  of  jurisdic- 


161  Mass.  Ill,  118,  42  Am.  St.  Rep. 
389,  396,  25  L.  R.  A.  806,  36  N.  E. 
837.  MICH.— Palmer  v.  Oakley,  2 
Doug.  (Mich.)  433,  47  Am.  Dec.  41; 
Coveney  v.  Phiscator,  132  Mich. 
258,  93  N.  W.  619.  MINN.— Turrell 
V.  Warren,  25  Minn.  9,  14.  MO.— 
Johnson  v.  Beazley,  65  Mo.  263,  27 
Am.  Rep.  285.  MONT.— Edgerton  v. 
Edgerton,  12  Mont.  122,  149,  33 
Am.  St.  Rep.  557,  575,  16  L.  R.  A. 
94,  29  Pac.  966;  Beach  v.  Spokane 
Ranch  &  Water  Co.,  25  Mont.  379, 
65  Pac.  Ill;  State  v.  District 
Court,  38  Mont.  166,  129  Am.  St, 
Rep.  636,  35  L.  R.  A.  (N.  S.)  1098, 
99  Pac.  291.  NBV.— Gamble  v.  Han- 
chett,  34  Nev.  351,  126  Pac.  Ill, 
rehearing  denied  in  Gamble  v.  Sil- 
ver Peak  Mines,  35  Nev.  319,  133 
Pac.  936.  N.  M.— Smith  v.  Mon- 
toya,  3  N.  W.  39.  ORE.— Monastes 
v.  Catlin,  6  Ore.  119,  120;  White 
v.  Espey,  21  Ore.  328,  331;  28  Pac. 
71;  Bank  of  Colfax  v.  Richardson, 
34  Ore.  531,  75  Am.  St.  Rep.  664, 
674,  54  Pac.  363.  S.  D.— Whitfield 
v.  Howard,  12  S.  D.  355,  362,  81 
X.  W.  727;  Phillips  v.  Phillips,  13 
S.  D.  231,  238,  83  N.  W.  94.  WASH. 
— Taylor  v.  Huntington,  34  Wash. 
455,  460,  75  Pac.  1104,  1106;  Magee 
v.  Big  Bend  Land  Co.,  51  Wash. 
406,  99  Pac.  16;  Michaelson  v. 
Seattle,  City  of,  63  Wash.  230,  115 
Pac.  167.  FED.— Christianson  v. 
King  County,  239  U.  §.  372,  60 
L.  Ed.  336,  36  Sup.  Ct.  Rep.  121; 
Blue  Mountain  Iron  &  Steel  Co.  v. 
Poetner,  65  C.  C.  A.  295,  131  Fed. 
59. 

See,  also,  notes  54  Am.  Dec.  448; 
58  Am.  Dec.  503;   92  Am.  Dec.  374. 


In  Oklahoma  county  courts  are 
entitled  to  same  presumption  as 
district  courts. — Brown,  Ex  parte, 
3  Okla.  Cr.  329,  105  Pac.  577. 

In  Oregon  summary  powers,  con- 
ferred on  courts  of  general  juris- 
diction, which  are  to  be  exercised 
in  a  prescribed  manner,  and  not 
according  to  the  course  of  the  com- 
mon law,  and  which  are  not  a  parr 
of  the  general  jurisdiction,  the 
presumption  does  not  attach.  ^ 
Furgeson  v.  Jones,  17  Ore.  204,  11 
Am.  St.  Rep.  808,  3  L.  R.  A,  620, 
20  Pac.  842. 

In  Washington  valid  process  in 
probate  proceedings  is  presumed. 
— Hays  V.  Mercantile  Inv.  Co.,  73 
Wash.  586,  132  Pac.  406. 

Jurisdiction  depending  upon  stat- 
ute in  local  court,  no  presumption 
arises  that  foreign  courts  have  a 
similar  jurisdiction. — Olds  v.  City 
Trust,  S.  D.  &  Surety  Co.,  185 
Mass.  506,  102  Am.  St.  Rep.  356, 
70  N.  E.  1022.  See  Swing  v.  Kayees 
Furniture  Co.,  123  Mo.  App.  37S, 
100  S.  W.  662. 

Sitting  in  probate  superior  courts 
entitled  to  same  presumption  as  to 
jurisdiction  as  in  ordinary  litiga- 
tion.— Johnson  v.  County,  162  Cal. 
391,  123  Pac.  263;  Rutenic  v.  Ham- 
akar,  40  Ore.  444,  67  Pac.  196; 
Magee  v.  Big  Bend  Land  Co.,  51 
Wash.  406,  99  Pac.  16. 

2  Brown  v.  Caldwell,  13  Cal.  App. 
29,.  31,  108  Pac.  874;  Grignon  v. 
Astor,  43  U.  S.  319,  11  L.  Ed.  283; 
Galpin  v.  Page,  1  Sawy.  325,  Fed. 
Cas.  No.  5204.  See  Haase,  Ex 
parte,  5  Cal.  App.  541,  00  Pac.  947. 


52 


eh.  ly.] 


JURISDICTION   BY    CONSENT. 


§44 


tion  of  the  court  may  be  rebutted  by  the  record  of  the 
entire  case  disclosing  a  want  of  jurisdiction.^ 

§  44.  Consent  of  parties  —  Confers  jurisdiction 
WHEN.  The  general  rule  is  that  neither  the  consent^  nor 
the  request-  of  the  parties  can  confer  jurisdiction  on  a 
court,  where  the  law  has  not  invested  it  with  such  juris- 
diction.^ This  rule  applies,  however,  to  original  jurisdic- 
tion only,^  so  that  where  the  court  once  had  jurisdiction, 
although  it  has  exhausted  its  power,  consent  to  further 
acts  or  proceedings  on  the  part  of  the  court  confers  upon 
it  jurisdiction  in  the  premises.^     Where  jurisdiction  is 


?.  Gray  v.  Hawes,  8  Cal.  562; 
Atchison,  T.  &  S.  F.  R.  Co.  v. 
Nicholls,  8  Colo.  188,  6  Pac.  512; 
Smith  V.  Montoya,  3  N.  M.  39,  42. 

1  Winn  V.  Fteele,  19  Ala.  171; 
Bates  V.  Gage,  40  Cal.  183;  Loy  v. 
Superior  Court,  11  Cal.  App.  560, 
105  Pac.  776;  Lindsay  v.  People, 
1  Idaho  438,  445;  Phillips  v. 
Thralls,  26  Kan.  780,  781;  Price  v. 
Hobbs,  47  Md.  359;  Rathbun  v. 
Moody,  4  Minn.  364  (Gilm.  273); 
Johnson  v.  Jones,  2  Neb.  126,  135; 
Cottrell  V.  Thompson,  15  N.  J.  L. 
(3  J.  S.  Gr.)  344;  Burckle  v.  Eck- 
hart,  3  N.  Y.  132,  affirming  3  Den. 
279;  Hobbs  v.  German-American 
Doctors,  14  Okla.  236,  78  Pac.  356; 
Bent's  Exrs.  v.  Groves,  3  McC. 
(S.  C.)  280.  15  Am.  Dec.  632; 
McHenry's  Lessees  v.  Wallen,  10 
Tenn.  (2  Yerg.)  441,  444;  State  v. 
Mortensen,  26  Utah  312,  73  Pac. 
562,  633;  Walker  v.  Tailor,  46  U.  S. 
(5  How.)  6467,  sub  nom.  Walker  v. 
Taylor,  12  L.  Ed.  52,  53;  Cutler  v. 
Rae,  48  U.  S.  (7  How.)  729,  731, 
12  L.  Ed,  890,  891;  Gruner  v. 
United  States,  52  U.  S.  (11  How.) 
163,  164,  13  L.  Ed,  647;  Scott  v. 
Sanford  (Dred  Scott  Case),  60  U.  S. 
(19  How.)  393,  472,  15  L.  Ed.  691, 


728;  Home  Life  Ins.  Co.  v.  Dunn, 
86  U.  S.  (19  Wall.)  214,  224,  22 
L.  Ed.  68,  69;  People's  Boule.  v. 
Calhoun,  102  U.  S.  256,  260,  26 
L.  Ed.  101,  102;  Kimball  v.  Kim- 
ball, 174  U.  S.  158,  163,  43  L.  Ed. 
932,  934,  19  Sup.  Ct.  Rep.  639; 
Boggs  V.  Martin,  179  U.  S.  206,  209, 
45  L.  Ed.  155,  156,  21  Sup.  Ct.  Rep. 
109;  McClaughry  v.  Deming,  186 
U.  S.  49,  68,  46  L.  Ed.  1049,  1057, 
22  Sup.  Ct.  Rep.  786. 

See,  also,  notes  18  Arti.  Dec.  127; 
54  Am.  Dec.  433;  14  Am.  St.  Rep. 
140;  36  Am.  St.  Rep.  754;  66  Am. 
St.  Rep.  733. 

Stipulation  of  parties  can  not 
confer  jurisdiction  where  it  could 
not  under  law  acquire  jurisdiction. 
—Bates  V.  Gage,  40  Cal.  183;  Lay 
V.  Superior  Court,  11  Cal.  App.  560, 
105  Pac.  776. 

2  Phillii>s  V.  Thralls,  26  Kan.  780, 
781. 

3Ginn  v.  Rogers,  9  111.  (4  Gilm.) 
131;  Peak  v.  People,  71  111.  278; 
Fleischman  v.  Walker,  91  111.  318, 
321. 

See,  also,  post,  §  76. 

4  Brown  v.  Crow's  Heirs,  3  Ky. 
(1  Hord.)  343,  348. 

5  Id. 

53 


§  45  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

limited  by  tlie  constitution  or  by  statute,  the  consent  of 
parties  can  not  confer  it  upon  the  court,  except  where  the 
limitation  is  in  regard  to  certain  persons.  In  such  case 
they  may,  if  competent,  waive  their  exemption  and  confer 
jurisdiction.^  And  conversely  the  agreement  of  parties 
can  not  operate  to  divest  a  court  of  its  jurisdiction,"  ex- 
cept as  hereafter  noted.^  So  where  a  court  of  general 
jurisdiction  has  summarj^  powers  conferred  upon  it, 
which  are  wholly  derived  from  statute,  and  not  exercised 
according  to  the  course  of  the  common  law,  or  are  no  part 
'of  its  general  jurisdiction,  its  decisions  must  be  regarded 
and  treated  like  those  of  courts  of  limited  and  special 
jurisdiction.^ 

§  45.  Want  of,  and  irkegtjlab  exercise  of,  jurisdiction 
DISTINGUISHED.  That  thcrc  is  a  marked  distinction  existing 
between  the  want  of  jurisdiction  and  jurisdiction  irregu- 
larly acquired  or  exercised,  should  be  carefully  noted.  In 
the  first  case,  the  judgTiient  can  be  attacked  in  any  form 
directly  or  collaterally ;  in  the  second,  only  by  direct  pro- 
ceeding in  the  court  which  rendered  it.^  The  rule  is,  that 
when  judicial  tribunals  have  no  jurisdiction  of  the  sub- 

6  Gray  v.  Hawes,  8  Cal.  562;  — Kelley  v.  Kelley,  161  Mass.  118, 
Norwood  V.  Kenfield,  34  Cal.  329,  42  Am.  St.  Rep.  389,  25  L.  R.  A. 
30  Cal.  393;  Bates  v.  Gage,  40  Cal.      809,  36  N.  E.  837. 

183;    Hobbs    v.    German-American  i  Whitwell  v.  Barbier,  7  Cal.  54, 

Doctors,  14  Okla.  236,  78  Pac.  356.  64;    Peck  v.   Strauss,  33  Cal.   678, 

7  Muldow  V.  Norris,  2  Cal.  74,  56  685;  Drake  v.  Duvenick,  45  Cal. 
Am.  Dec.  313.  455,    466;    Ah   Men,    Ex    parte,    77 

s  See,  post,  §  56.  Cal.  198,  201,  11  Am.  St.  Rep.  263, 

!t  Hindman  v.  O'Connor,  54  Ark.  19    Pac.    380;    People    v.    Palermo 

643,  13  L.  R.  A.  490,  498,  16  S.  W.  Land  &  Water  Co.,  4  Cal.  App.  722, 

3  052;  Clark,  Ex  parte,  87  Cal.  641,  89   Pac.   725;    Lyons,   Town  of,  v. 

25  Pac.  967;  Furgeson  v.  Jones,  17  Cooledge,  89  111.  534;   Rice  v.  Bol- 

Ore.  204,  11   Am.  St.    Rep.   808,   3  ton,  126  Iowa  654,  658,  100  N.  W. 

L.  R.  A.  620,  20  Pac.  842;   De  Val  634,  635,  102  N.  W.  509;   Rigor  v. 

V.  De  Val,  57  Ore.  137,  109  Pac.  755.  State,    101    Md.   473,    4   Ann.    Cas. 

Jurisdiction  to  grant  alimony  re-  719,  61  Atl.  634;   Sodini  v.  Sodini, 

siding  in   court  of  another   state,  94  Minn.  303,  110  Am.  St.  Rep.  371, 

must  be  proved  in  order  to  secure  102  N.  W.  862;  Kelly  v.  Harrison,- 

execution  on  the  foreign  jirJgment.  69  Miss.  856,  861,  12  So.  261. 

54 


ell.  IV.]  JURISDICTION   AT    CHAMBERS.  §  46 

ject-matter  on  which  they  assume  to  act,  their  proceedings 
are  absolutely  void;  but,  when  they  have  jurisdiction  of 
the  subject-matter,  irregularities  or  illegality  in  their  pro- 
ceedings does  not  render  them  absolutely  void,  though 
they  may  be  avoided  by  timely  and  proper  objection, - 

§  46.  JuRisDicTioisr  at  chambers — In  gexer.\l,.  It  may 
be  noted  in  passing  that  ''judge's  chambers"  are  not  con- 
fined to  the  room  in  the  courthouse  which  is  the  usual 
place  for  transacting  judicial  business  not  required  to 
be  done  in  open  court.  Consequently  "chamber  busi- 
ness" may  be  done  wherever  the  judge  may  be  found, 
^vdthin  the  territorial  jurisdiction  of  the  court/  and  in 
some  cases,  in  the  chambers  in  an  adjoining  county,  under 
statutory  provision.^  However,  the  general  rule  is,  that 
all  judicial  business  must  be  transacted  in  court,  and  that 
there  must  be  some  express  warrant  of  the  statute  to 
authorize  any  of  it  to  be  transacted  at  chambers.^  The 
California  constitution  does  not  prohibit  the  legislature 
from  conferring  upon  judges  authority  to  hear  and  deter- 
mine actions  and  proceedings  at  chambers;^  and  such 
authority  is  granted  in  respect  to  certiorari,  mandamus 
and  quo  warranto.-^  In  an  instance  in  which  a  cause,  of 
which  the  court  has  jurisdiction,  by  consent^  of  the  parties, 
is  tried  by  the  judge  at  chambers,  the  judgment  rendered 
therein  is  not  void,  in  the  absolute  sense,  for  want  of  a 
trial  in  open  court."^  Under  a  constitutional  or  statutory 
provision  permitting  a  judge,  holding  court  for  another 

2  Wayne,  Town  of,  v.  Caldwell,  560;  Norwood  v.  Kenfield,  34  Cal. 
1   S.  D.  483,  36  Am.  St.   Rep.   750,       332. 

47  N.  W.  547.  4  Brewster  v.  Hartley,  37  Cal.  15, 

99  Am.  Dec.  237. 


1  Von  Schmidt  v.  Widber,  99  Cal. 
511,  513,  34  Pac.  109;  Lux,  In  re, 
100  Cal.  593,  35  Pac.  341;  Neagle, 
In  re,  14  Sawy.  232,  265,  39  Fed. 
833. 


•'■'  Id.;  People  Ex  rel.  Del  Fries  v. 
Marin  County,  10  Cal.  314;  Terri- 
tory, Ex  rel.  Eisenmann  V.  Shearer, 
2  Dak.  340,  8  X.  W.  135. 

"■•  As  to  consent  conferring  juris- 
2Coburn    V.    Pacific    Lumber    &      diction    on    the   court,   see.   sujira. 


Mill  Co.,  46  Cal.  31,  33.  g  44 

3  Lacro   v.   Casaneuava,    30   Cal.  r  Bennett,  Ex  parte,  44  Cal.  S4. 

55 


§§47,48  CODE   PLEADING   AND   PRACTICE.  [l^t.  I, 

judge,  to  adjourn  the  trial  of  the  cause  from  Saturday  to 
Monday,  during  the  interval  of  adjournment,  such  judge 
is  not  a  judge  of  the  court,  and  can  not,  at  chambers, 
grant  an  injunction,  although  the  judge  for  whom  he  is 
sitting  could  do  so.* 

§  47.  Acts  which  may  be  done.  It  may  be  pre- 
mised that  all  orders  granted  at  chambers  may  be  set 
aside  at  chambers.^  A  judge  at  chambers  may  grant  leave 
to  renew  a  motion ;-  issue  certiorari,  and  hear  the  same  at 
chambers;^  issue  a  mandamus  and  try  the  cause ;^  may 
order  suspension  of  proceedings  under  an  execution  until 
a  motion  before  the  court  to  recall  or  quash  the  execution 
can  be  heard  and  disposed  of  ;'^  may  make  an  order  dis- 
pensing ^\ith  undertaking  by  a  municipal  officer  f  receive 
inventory,'^  and  the  like. 

Under  statute,  a  judge  at  chambers  may  grant  an  in- 
junction ex  parte;*  discharge  a  guardian,  or  exercise  any 
power  preliminary  to  such  discharge,^  or  may  pass  upon 
a  demurrer,  submitted,  even  though  at  the  time  he  is  in 
the  *' chambers"  in  another  county.^^ 

<^  48.    Acts  which  may  not  be  done.    A  judge  at 

chambers  has  no  authority  to  grant  a  writ  of  assistance  to 
put  into  possession  a  purchaser  under  a  mortgage  fore- 
closure, in  the  absence  of  a  statute  conferring  such  au- 
thority;^ no  jurisdiction  to  make  an  order  setting  aside 
an  execution  on  a  judgment,  and  perpetually  staying 

8  Wallace  v.  Helena  Elec.  R.  Co.,  5  Sanchez   v.    Carriaga,   31    Cal. 

10  Mont.  24,  24  Pac.  626,  25  Pac.  170. 

278.  6  Von  Schmidt  v.  Widber,  99  Cal. 

1  Coburn   V.    Pacific   Lumber    &  ^11,  512,  34  Pac.  109. 

Mill  Co.,  46  Cal.  31,  33.,  ^  Lux,    In    re,    100    Cal.    593.    35 

Pac    341 

2  Kenney  v.  Kelleher,  65  Cal.  ,  gullivan  v.  Trumfo  Gold  &  Sil- 
^^2.  ver  Min.  Co.,  33  Cal.  385. 

3  People  ex  rel.  De  Fries  v,  9  Warder  v.  Elkins,  38  Cal.  439. 
Marin  County,  10  Cal.  344.  10  Agard  v.  Alencia,  39  Cal.  292. 

4  Territory  ex  rel.  Eisenmann  v.  1  Chapman  v.  Thomburg,  23  Cal. 
Shearer.  2  Dak.  340,  8  N.  W.  135.  48. 

5G 


Ch.  IV.]  JURISDICTION   AT    CHAMBERS.  §§  49,  50 

enforcement  of  the  judgment  ;2  no  power  to  authorize  the 
plaintiff  in  a  condemnation  proceeding  to  take  possession 
of  the  property  pending  the  proceedings,  and  no  power 
to  stay  all  actions  against  such  plaintiff  on  account  of 
such  taking  of  possession;^  no  power  to  grant  continu- 
ance of  cause  in  election  contest;^  no  power  to  make  an 
order  directing  the  clerk  of  the  court  to  enter  on  the 
minutes  nunc  pro  tunc  an  order  alleged  to  have  been  made 
in  open  court.^  Neither  has  he  power  to  entertain  motions 
to  strike  out  pleadings  or  parts  of  pleadings/'  nor  make 
special  findings  required  to  be  made  by  the  court,  without 
notice  to  either  side.'^ 

§  49.  In  Idaho.  A  judge  at  chambers,  or  in  vaca- 
tion, in  Idaho,  has  no  power  to  issue  a  writ  of  habeas  cor- 
pus ;^  or  at  chambers  to  issue  subpoena  for  witnesses  in  a 
criminal  cause,-  and  no  jurisdiction  to  hear  proceedings 
for  the  condemnation  of  land  under  the  power  of  eminent 
domain,  or  to  enter  judgment  or  decree  in  such  a  pro- 
ceeding.^ 

§  50.    In  Kansas.  A  judge  at  chambers,  in  Kansas, 

may  permit  the  amendment  of  an  affidavit  for  an  order  of 
arrest;^  and  he  may  hear  and  determine  a  motion  to 
dissolve  an  order  of  attachment,  both  parties  appearing 
and  neither  objecting  thereto,-  notwithstanding  the  fact 
that  the  regular  session  of  the  district  court  is  being  held 

2  Bond  V.  Pacheco,  30  Cal.  530;  i  Bowling,  In  re,  4  Idaho  715,  43 
Norwood  V.  Kenfield,  34  Cal.  329,      Pac.  871. 

332.  :.'  Delano  v.  Logan  County  Coni- 

3  Loomis  V.  Andrews,  49  Cal.  239.      ,^^,.g^  4  j^j^j^q  §3    §7^  35  p^c.  S41. 


.".  Washington  &  I.  R.  Co.  v. 
Coeur  D'Alene  R.  &  Xav.  Co.,  3 
Idaho  (Hahsb.)  263,  28  Pac.  394. 


4  Norwood    V.    Kenfield,   34   Cal 
329. 

sHegeler   v.    Hecknell,    27    Cal 
491. 

6  Larco  v.   Casaneuava,   30    Cal.  '  Baker   Mfg.   Co.   v.   Knntts.   30 

560;   Norwood  v.  Kenfield,  34  Cal.      Kan.  356.  2  Pac.  510. 
332.  2  Swearinger  v.  Howser,  37  Kan. 

T  Andrade  v.   Andrade,   14  Ariz.      126,  14  Pac.  436;  Yoakan  v.  How- 
379,  128  Pac.  813.  ser,  37  Kan.  438,  14  Pac.  130. 

57 


§§51,52  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

by  a  judge  pro  tern  in  the  same  county.^  But  a  district 
judge  has  no  power,  at  chambers,  to  review  the  action  of 
the  district  court  vacating  and  setting  aside  an  order  of 
court;'*  neither  can  he  revive  an  order  of  arrest  that  has 
been  discharged  by  the  district  court.^  A  prosecution  in 
the  nature  of  contempt  of  court  for  the  violation  of  a 
peremptory  writ  of  mandamus,  can  not  be  heard  and 
determined  at  chambers.^  And  a  judge  at  chambers  has 
no  authority  or  power,  unless  specially  conferred  by  stat- 
ute, at  chambers,  to  make  an  order  abating,  as  a  public 
nuisance,  a  place  at  which  intoxicating  liquors  are  alleged 
to  have  been  sold  in  \T.olation  of  law,  and  forever  enjoin- 
ing the  owner,  lessee,  or  keeper,  from  maintaining  such 
place,  although  such  order  of  abatement  and  sustaining 
order,  under  the  statute,  may  be  issued  by  the  court.'^ 

§  51.    In  Montana.  By  special  statutory  provision, 

in  Montana,  power  is  conferred  on  judges  of  the  district 
court  to  hear  and  determine  applications  for  condemning 
rights  of  way  to  mining  claims,  and  to  make  complete 
disposition  thereof  at  chambers.  Under  such  pro\'ision 
and  grant  of  power,  after  a  final  judgment  dismissing  a 
petition  for  such  right  of  way,  the  judge,  at  chambers, 
may  also  determine  and  adjudge  the  costs  of  the  proceed- 
ing.^ 

<^  52.  In  Nevada.  The  statute  of  Nevada,^  confer- 
ring upon  all  district  judges  equal,  co-extensive,  and  con- 
current jurisdiction  and  power ;  authorizing  them  to  each 
hold  court  in  any  county  in  the  state,  and  to  exercise  and 
perform  the  duties,  functions  and  powers  of  the  court, 
and  of  the  judges  thereof,  and  of  judges  at  chambers, 

3  Id.  *  -'  Harmer,  In  re,  47  Kan.  262,  27 

4  Suppe,  In   re,   33   Kan.    588,    7      Pac.  1004. 

Pac.  268.  1  Granite  Mountain  Min.  Co.  v. 

5  Id.  Weinstein,    7    Mont.    440,    17    Pac. 
0  State  V.  Stevens,  40  Kan.  113,      113. 

19  Pac.  365;   Price,  In  re,  40  Kan.  i  Stats.    1885,   p.   60,    §    4    (Gen. 

156,  19  Pac.  751.  Stats.  2495). 

53 


Ch.  IV.]  JURISDICTION   AT    CHAMBERS.  §§  53,  51 

does  not,  by  any  reasonable  interpretation,  give  the 
judges  at  cbambers  all  the  powers,  duties,  and  functions 
of  the  organized  tribunal  called  a  ''court";  and  does  not 
in  any  manner  invest  a  judge  at  chambers  mth  any  other 
power  or  authority  than  the  usual  powers  and  authority 
at  chambers. 2 

§  53.    In  New  Mexico.    Under  the  statute  of  New 

Mexico,^  providing  that  courts  shall  be  always  open,  and  a 
further  provision  that  injunctions  may  be  granted  in  aid 
of  any  suit  at  law,  provided  that  such  suit  has  been 
begun,2  a  judge  of  the  district  court,  at  chambers,  has 
jurisdiction  to  grant  an  injunction  in  vacation;^  and  the 
power  thus  granted  is  comprehensive  enough  to  include 
proceedings  in,  and  punishment  for,  contempt  in  disobey- 
ing the  injunction  thus  granted.* 

§  54.    In  Oregon.    Where  the  parties,  after  issue 

joined,  stipulated  that  the  trial  of  the  issues  by  a  jury 
should  be  waived,  that  the  evidence  should  be  taken  in 
writing  before  a  referee  and  the  cause  submitted  to  the 
judge  for  his  decision  at  chambers ;  the  e\ddence  ha\^ng 
been  so  taken  and  submitted  to  the  judge  as  agreed,  the 
judge  decided  the  case  at  chambers  and  entered  the  judg- 
ment at  the  term  then  being  held ;  and  it  was  held  that  the 
judgment  was  not  void  for  want  of  jurisdiction.^  The 
statute-  authorizing  the  trial  of  election-contest  cases  by 
the  judge  at  chambers,  \\ithout  in  any  way  impairing  the 
right  to  contest  the  election  in  the  manner  otherwise  pro- 
^dded  by  law,  is  not  in  violation  of  the  state  constitution,^ 
inasmuch  as  there  is  no  prohibition,  either  express  or  by 

2  state  ex  rel.  Coffin  v.  Atherton  i  Roy  v.  Horsley,  6  Ore.  382,  25 
(County  Commissioners),  19  Xev.      Am.  Rep.  537. 

332,  10  Pac.  901,  909.  ~  Ore.  Misc.  Laws,  tit.  4,  ch.  14, 

1  N,  M.  Comp.  Laws,  §  1829.  p.  574. 

2N.  M.  Laws,  1889,  ch.  117,  §  1.  ^-  Ore.  Const.,  art.  7,  §  !,  reading: 

3  Sloan,  In  re,  5  N.  M.  590,  25  "The  judicial  power  of  the  state 
Pac.  930.  shall    be    invested    in    a    supreme 

4  Id.  «^urt,    circuit  courts,    and   coupt:' 

59 


§§55,56  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

implication,  preventing  the  legislature  from  so  provid- 
ing-^ 

§  55.    In  Washington.    There  being  nothing  in  the 

organic  act  prohibiting  nor  any  limitation  upon  the  legis- 
lature which  prohibited  the  enactment  of  section  2138  of 
the  Code  of  1881,  it  is  valid,  empowering  judges,  in  theii* 
respective  districts,  at  chambers,  in  vacation,  to  entertain, 
try,  hear,  and  determine  all  actions,  causes,  motions,  de- 
murrers, and  other  matters  not  requiring  a  trial  by  jury, 
and  providing  that  all  rulings,  orders,  judgments,  and  de- 
crees made  and  rendered  at  chambers,  may  be  entered  of 
record  in  vacation,  and  shall  have  like  force  and  effect  as 
though  made  or  rendered  and  entered  at  a  regular  term  of 
the  court,  and  the  fact  that  a  decree  in  an  action  to  quiet 
title  recited  that  the  cause  came  on  to  be  heard  before  the 
judge  at  chambers,  does  not  render  the  decree  invalid.^ 
The  manifest  intention  of  the  legislature,  by  this  enact- 
ment, was  to  have  the  courts  of  each  district  open  at  all 
times  for  the  transaction  of  business  specified  therein.^ 

§  56.  Ouster  of,  and  loss  of,  jueisdiction.  It  has  been 
said  that  public"  policy  requires  that,  so  long  as  contracts 
are  not  contra  bonos  mores  or  prejudicial  to  the  general 
welfare,  all  persons  competent  to  contract  should  have 
the  utmost  liberty  to  do  so  ;^  and  that  the  legislature  can 
not  prevent  persons  who  are  sui  juris  from  making  their 
own  contracts.-  Applying  these  principles,  it  has  been 
recently  held  that  a  statute  which  prevents  parties  from 

courts,   which   shall   be   courts   of  25  Wash.  349,  87  Am.  St.  Rep.  757, 

record,  having  general  jurisdiction,  65  Pac.  559. 

to   be   defined,   limited,   and   regu-  2  Murne  v.  Schwabacher,  2  Wash, 

lated  by   law  in  accordance  with  Ter.  130,  3  Pac.  899,  2  West  Coast 

this  constitution."      *  Rep.  799. 

4  Crespay  v.  Gray,  10  Ore.   345,  i  Waters  v.  Wolf,  162  Pa.  St.  153, 

348.     See  People  ex  rel.  Wood  v.  42  Am.  St,  Rep.  815,  29  Atl.  646: 

Draper,  15  N.  Y.  532,  543,  affirming  Adinolfl  v.  Hazlett,  242  Pa.  St.  25. 

25  Barb.  344;   Leggett  v.  Hunter,  48  L.  R.  A.  (N.  S.)  855,  88  Atl.  869. 

19  N.  Y.  445,  463.  2  Godcharies    v.    Wigeman,    113 

1  Kalb  V.  German  Sav.  &  L.  Soc.  Pa.  St.  431,  6  Atl.  354. 

GO 


oh.  IV.]  LOSS   OF    JURISDICTION.  §  5G 

entering  into  any  agreement  which  will  oust  the  juris- 
diction of  the  court  over  the  subject-matter  of  the  con- 
tract, is  violative  of  the  constitutional  right  to  acquire, 
possess,  and  protect  property,  which  includes  the  right 
to  contract,  and  is  therefore  invalid.^  On  the  other  hand, 
it  is  said  that  an  unexecuted  agreement  to  arbitrate  all 
disputes  between  the  contracting  parties,  which  shall 
grow  out  of  the  contract,  in  the  execution  thereof,  both  as 
to  liability  and  as  to  loss,  does  not  constitute  a  bar  to  a 
suit  upon  the  contract,  for  the  reason  that  such  agree- 
ment to  arbitrate  is  void,  on  the  ground  that  it  is  an 
attempt  to  oust  the  courts  of  their  jurisdiction.'*  That  the 
parties  to  a  litigation  may  submit  the  controversy  to  arbi- 
tration, is  well  established;^  although  some  of  the  cases 
hold  that  such  submission  is  impliedly  by  rule  of  the 
court  ;^  where  the  latter  doctrine  prevails,  it  is  thought 
the  court  does  not  lose  jurisdiction  to  confirm  the  award 
and  enter  judgment  thereon.  The  courts,  however,  are 
divided  on  the  question  as  to  whether  the  submission  of  a 
pending  litigation  to  arbitration  ousts  the  court  of  juris- 
diction.'^ 

Loss  of  jurisdiction  does  not  ensue  from  mere  error  or 
irregularity  in  the  proceeding  of  the  court,  as  the  erro- 
neous entry  of  a  judgment;^  or  a  mistake  as  to  the  law 
controlling  its  decision;^  failure  on  part  of  court  to  act 
promptly  in  a  matter  not  mandatory  does  not  work  loss 

3  Adinolfl  V.  Hazlett,  242  Pa.  St.  6  Zehner  v.  Lehigh  Coal  &  Nav. 
25,  48  L.  R.  A.  (N.  S.)  855,  88  Pa.  Co.,  187  Pa.  St.  487,  G7  Am.  St.  Rep, 
St.  869.  586,  41  Atl.  4G4. 

4  Williams  V.  Branning  Mfg.  Co..  "^  ^^^  "^^^  collecting  the  cases 
154  N.  C.  205,  47  L.  R.  A.  (N.  S.)  ^'"  ^'^"'^  ^°"'  ^^  ■-  ^-  ^-  ^^-  S) 
33  ^  70  S.  E.  290.  ^  ^^^^^  ^    Williams,   146   Cal.  3, 

0  See,  among  other  cases.  State  ^9  Pac   527 
ex  rel.  Watkins  v.  North  American  9  People  ex  rel.  Green  v.  Court 

Land  &  Timber  Co.,  106  La.  621,  of  Appeals,  27  Colo.  405,  51  L.  R.  A. 

87   Am.  St.   Rep.  309,  31   So.  172;  105,  61   Pac.   592.     See  People  ex 

Minneapolis    &    St.    L.    R.    Co.    v.  rel.  Salomon  v.  Court  of  Appeals, 

Cooper,  59  Minn.  290,  61  N.  W,  143.  30  Colo.  11,  69  Pac.  606. 

61 


§56 


CODE   PLEADING   AND    PRACTICE. 


[Pt.  I, 


of  jurisdiction  ;^^  fraud  and  misconduct  on  the  part  of  the 
presiding  judge  being  charged,  will  not  oust  the  court  of 
jurisdiction  in  a  probate  proceeding,  unless  the  complaint 
or  petition  shows  on  its  face  facts  clearly  supporting  the 
charge;"  and  where  jurisdiction  of  the  person  is  lost  ])y 
the  court  because  of  defective  proceedings  or  irregulari- 
ties, jurisdiction  may  be  restored  to  the  court  by  (1)  ap- 
pearance of  the  defendant,  (2)  by  waiver  of  objection 
because  of  such  defect  or  irregularity,^-  or  (3)  by  failure 
to  make  timely  objection.^^ 


10  Thus,  under  a  statute  provid- 
ing that  in  an  action  upon  a  con- 
tract to  recover  money  only,  upon 
the  plaintiff  filing  proof  of  personal 
service  of  the  summons  and  com- 
plaint on  one  or  more  of  the  de- 
fendants the  court  "shall"  there- 
upon enter  judgment  for  the 
amount  claimed  in  the  complaint, 
a  failure  of  the  court  to  enter  such 
judgment  for  the  period  of  four 
years  does  not  divest  the  court  ol 
jurisdiction  to  enter  judgment  on 
such  proof  such  service,  the  pro- 
vision of  the  statute  not  being 
mandatory  and  requiring  the  judg- 
ment be  entered  forthwith. — Peirce 
V.  National  Bank,  44  Wash.  404,  87 
Pac.  488. 

The  court  say  that  the  statute, — 
§  735  of  Pierce's  Code,  §  5090  of 
Pallenger's  Ann.  Codes  &  Stats. — 
is  only  one  of  a  number  of  sections 
enacted  to  govern  the  practice  in 
civil  actions,  and  to  construe  it  as 
mandatory  in  the  sense  of  requir- 
ing the  court,  under  jienalty  of  loss 
of  jurisdiction  over  the  subject- 
matter  of  the  action,  would  render 


it  out  of  harmony  with  the  other 
sections. — Id. 

Remedy  for  failure  to  enter  judg- 
ment in  such  a  case,  after  a  rea- 
sonable lapse  of  time,  is  a  motion 
by  defendant  to  dismiss  for  want 
of  prosecution. — Id. 

iiLiddicoat  v.  Treglow,  6  Colo. 
47. 

12  Absence  of  judge  on  day  set 
for  trial  of  a  cause  does  not  divest 
him  of  jurisdiction  of  the  subject- 
matter,  but  it  does  divest  him  of 
jurisdiction  of  the  person  of  the 
defendant;  entering  into  a  written 
stipulation  for  trial  of  a  named 
subsequent  day  constitutes  a  wai- 
ver of  all  objections. — Hobbs  v. 
German  -  American  Doctors,  14 
Okla.  236,  78  Pac.  356. 

13  Hobbs  v.  German-American 
Doctors,  14  Okla.  236,  78  Pac.  356. 
See  Jennerson  v.  Garvin,  7  Kan. 
136;  Divinney  v.  Abaun,  24  Kan. 
683;  Patterson  v.  McRea,  29  Mich. 
258;  Simon  v.  Sempliner,  86  Mich. 
136,  48  N.  W.  700;  Fischer  v. 
Cooley,  36  Neb.  626,  54  N.  W.  960; 
Sagendorph  v.  Shult,  41  Barb. 
(N.  Y.)  102. 


62 


CHAPTER  V. 

JURISDICTION KINDS  OF. 

§  57.  In  general. 

§  58.  General  jurisdiction. 

§  59.  Limited  jurisdiction — Incomplete  and  inadequate  jurisdic- 
tion. 

§  60.  Original  jurisdiction. 

§  61.  Exclusive  jurisdiction. 

§  62.  Concurrent  jurisdiction. 

§  63.  Conflict  of  jurisdiction. 

§  57.  In  general.  Jurisdiction  is  divisible  into  a  num- 
ber of  classes,  all  of  wbich  are  distinct  in  basis  and  yet 
cognate,  which  can  not  here  be  discussed  in  detail,  such 
as:  (1)  General  Jurisdiction  and  Limited  Jurisdiction; 

(2)  Original  Jurisdiction  and  Appellate  Jurisdiction;  and 

(3)  Exclusive  Jurisdiction,  Concurrent  Jurisdiction,  and 
Conflicting  Jurisdiction.  All  of  these  general  classes  of 
jurisdiction  are  considered,  in  a  limited  way,  in  the  fol- 
lowing sections  in  this  part,  except  Appellate  Jurisdic- 
tion, which  will  receive  attention  in  a  subsequent  chapter 
of  this  part.^ 

^  58.  General  jurisdiction.  The  subject  of  general 
jurisdiction  of  courts  is  too  well  understood  to  require 
extended  discussion  in  this  place;  it  is  sufficient  to  remark 
that  it  comprehends  all,  or  the  whole,  of  the  jurisdiction 
there  is  in  a  particular  case,  and  implies  authority  extend- 
ing to  the  whole  of  the  particular  cause  or  subject,  action 
or  classes  of  action.^  Circuit  courts  and-district  courts  of 
sister  states  are  presumed  to  be  courts  of  general  juris- 
diction,2  and  this  presumption  extends  to  their  acts  when 
sitting  as  courts  of  probate.^ 

1  See,  post,  §§  84,  90,  99.  2  Poll  v.  Hicks.  67  Kan.  191,  72 

1  Grade  v.  Freeland,  1  N.  Y.  228,      Pac.  847. 
232.  3  See,  supra,  §  43,  footnote  1. 

63 


§§  59-61  code  pleading  and  practice.  [pt.  i, 

§  59.  Limited  jurisdiction — Incomplete  and  inade- 
quate JURISDICTION.  Limited  jurisdiction  may  apply  to 
the  nature  and  organization  of  the  court,  to  the  subject- 
matter  or  res  of  the  action,  or  to  the  territorial  limits  to 
which  the  authority  extends.  All  courts  not  of  record  are 
of  limited  jurisdiction,  and  some  courts  of  record  are 
made  by  statute  courts  of  limited  and  not  general  juris- 
diction. Jurisdiction,  considered  in  connection  with  judi- 
cial functions,^  includes  the  power  to  compel  a  person  to 
appear  and  answer  a  complaint,  or  to  punish  him  for  fail- 
ing to  do  so;  the  power  to  take  the  property  in  dispute 
into  the  custody  of  the  law  pending  the  determination  of 
the  cause;  the  power  to  compel  the  production  of  evidence 
and  hear  the  parties ;  the  power  to  determine  the  question 
of  right  between  the  parties  and  to  enforce  that  deter- 
mination.^ Where  there  is  a  lack  of  power  in  either  of  the 
things  above  mentioned,  either  (1)  because  intentionally 
withheld  or  (2)  because  of  the  incapacity  of  the  grantor 
to  confer  it,  in  the  first  instance  it  will  be  a  case  of  limited 
jurisdiction,  and  in  the  second  of  incomplete  and  inade- 
(juate  jurisdiction.^ 

§  60.  Original  jurisdiction.  Broadly  speaking,  orig- 
inal jurisdiction — whether  generaP  or  limited^ — is  a  gen- 
eral term  of  limitation,  and  means  power  and  authority 
to  entertain  cases  in  the  first  instance  as  contradistin- 
guished from  appellate  jurisdiction;^  but  original  juris- 
diction does  not  import  exclusive  jurisdiction.* 

<§i  61.  Exclusive  jurisdiction.  It  has  been  said  that 
there  is  nothing  in  the  nature  of  jurisdiction  which  ren- 

1  As  to  judicial  functions,  see,  3  Reed  v.  McCormick,  4  Cal.  342, 
ante,  §  32.                                                   343;  Castner  v.  Chandler,  2  Minn. 

2  State  ex  rel»  Watkins  v.  North      86,  88. 

American  Land  &  Timber  Co.,  106  4  Crowell  v.  Lambert,  10  Minn. 

La.  621,  631,  87  Am.  St.  Rep.  309,  369,  372;   Jones  y.  Reed,  3  Wash. 

319,  31  So.  172.  61,  27  Pac.  1068;  Bors  v.  Preston, 

3  Id.  Ill  U.  S.'252,  28  L.  Ed.  419,  4  Sup. 

1  See,  ante,  §  58.  Ct.  Rep.  407;    Pooley  v.  Luce,  76 

2  See,  ante,  §  59.  Fed.  146,  147. 

64 


ell.  v.]  ORIGINAL  JURISDICTION.  §  61 

clers  it  exclusive  ;^  yet,  as  a  matter  of  fact,  in  practice,  as 
between  courts  of  equal  authority  and  jurisdiction,  the 
court  first  getting  jurisdiction  of  a  cause  and  of  the  parties 
involved  thereby  acquires  the  exclusive  jurisdiction  to  try 
and  dispose  of  such  cause.-  It  is  not  infrequently  that  a 
statute  creating  an  inferior  court,  gives  to  it  exclusive 
jurisdiction  over  designated  cases  or  classes  of  cases, — 
e.  g.,  police  courts  and  misdemeanor  cases,  and  the  like 
offenses ;  but  such  exclusive  jurisdiction  relates  to  courts 
of  the  same  class  only,^  and  has  reference  to  the  right  to 
try,  or  to  examine  and  hold  for  trial,  such  cases,^  and  does 
not  exclude  the  authority  of  a  justice  of  the  peace  to 
receive  complaints  and  issue  warrants,  where  he  makes 
them  returnable  before  such  court.^  In  matters  apper- 
taining to  the  federal  government  alone,  exclusive  juris- 
diction is  held  to  reside  in  the  federal  supreme  court  and 
the  inferior  federal  courts,  under  the  constitution  and  the 
federal  statutes,^  e.  g.,  actions  affecting  foreign  consuls,*^ 
although  there  are  cases  holding  that,  under  the  federal 
statute,*^  state  courts  have  concurrent  jurisdiction,  with 

1  Delafield  v.  State  of  Illinois,  2  Co.,  148  U.  S.  80,  83,  37  L.  Ed.  376, 
Hill  (N.  Y.)  159,  164,  26  Wend.  192,  377,  13  Sup.  Ct.  Rep.  457;  Cable  v. 
affirming  8  Paige  527,  influenced  United  States  Life  Ins.  Co.,  191 
by  the  doctrine  laid  down  by  Mr.  U.  S.  288,  309,  48  L.  Ed.  186,  194-5, 
Justice  Washington  in  Houston  v.  24  Sup.  Ct.  Rep.  74. 

Moore,  18  U.   S.    (5  Wheat.)    1,  5  3  State  v.  Jones,  73  Me.  280,  282. 

L.  Ed.  19.  4  Com.  v.  O'Connell,  74  Mass.  (8 

2  See  language  of  court,  though  Gray)  464,  465. 
obiter,  in  Peck  v.  Jenness,  48  U.  S.  5  Id. 

(7  How.)    612,  624,  12  L.  Ed.  841,  c  Gon-shay-ee,  Ex  parte,  130  U.  S. 

846;   Buck  v.  Colbath,  70  U.  S.   (3  343,  32  L.  Ed.  973,  9  Sup.  Ct.  Rep. 

Wall.)  334,  341,  17  L.  Ed.  257,  260;  542. 

Riggs  V.  Johnson  County,  73  U.  S.  ^  Miller  Y.  Van  Loben   Sels,   66 

(6  Wall.)   166,  204,  205,  18   L.  Ed.  Cal.  341,  5  Pac.  512,  thought  to  be 

768,    779;    Taylor    v.    Taintor,    83  overruled,  notwithstanding  the  vig- 

U.  S.  (16  Wall.)  366,  370,  21  L.  Ed.  orous  protest,  in  Wilcox  v.  Luce, 

287,  289;  Providence  &  New  York  footnote  9,  this  section. 

Steamship  Co.  v.  Hill  Mfg.  Co.,  109  8  Federal    district    courts    given 

U.  S.  578,  606,  27  L.  Ed.  1038,  1048,  jurisdiction    in    such    action,    but 

3  Sup.  Ct.  Rep.  379,  617;   Astiaza-  there  is  no  concurrent  jurisdiction, 

ran   v.    Santa   Rita   Land    &    Min.  in    words,    conferred    upon    state 
I  Code  PI.  and  Pr.— 5                             (J5 


§  62  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

the  federal  courts,  of  suits  against  foreign  consuls  f  but 
this  jurisdiction  on  the  part  of  the  state  courts  is  thought 
to  be  restricted  to  ''trading"  consuls,  and  not  to  extend 
to  the  ''commercial"  consul  of  a  foreign  state  or  coun- 
try,^" if  such  a  distinction  may  be  properly  drawn.  State 
courts  have  concurrent  jurisdiction  to  enforce  rights 
created  or  declared  by  the  federal  Employer's  Liability 
Act.ii 

§  62.  Concurrent  jurisdiction.  In  addition  to  what 
has  been  said  in  the  preceding  section  regarding  concur- 
rent jurisdiction  of  the  state  courts  mth  the  federal 
courts,  it  remains  to  be  added  that,  while  there  is  nothing 
in  the  nature  of  jurisdiction  that  makes  it  exclusive,^ 
there  is  no  apparent  reason  why  it  should  not  be,  and  as 
a  matter  of  fact  it  is  frequently,  concurrent.^  The  legis- 
lature, however,  can  not  confer  on  one  court  the  functions 
and  powers  which  the  constitution  has  given  to  another, 
where  that  jurisdiction  is  exclusive.^  If,  however,  exclu- 
sive jurisdiction  be  not  conferred  upon  a  court  by  the 

courts.— See  §  24  of  Act,  36  Stats.  n  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 

at   Large,    p.    1093,    4    Fed.    Stats.  Hesterly,   98   Ark.   252,    135    S.   E. 

Ann.  (2d  ed.),  p.  842.  874;  Bradbury  v.  Chicago,  R.  L.  & 

Conflict      in     decisions     as     to  P.  R.  Co.,  149  Iowa  57,  40  L.  R.  A. 

whether    the    jurisdiction    of    the  (N.  S.)  689,  128  N.  W.  1. 

federal  courts  is  made  exclusive,  i  See,  supra,  §  61,  footnote  1. 

and    the    state    courts    ousted    of  2  Perry   v.   Ames,    26    Cal.    372; 

their    concurrent    jurisdiction,    by  Carriaga  v.   Dryden,  30   Cal.   246; 

an  act  of  Congress  which,  without  Courtwright  v.  Bear  River  &  Au- 

words  of  exclusion,  merely  confers  burn   Water  &   Min.   Co.,   30   Cal. 

jurisdiction  on  the  federal  courts.  573,  583-585;  Knowles  v.  Yeates,  31 

— See  full  discussion  in  note  in  48  Cal.  82,  90;  Higgins  v.  Tax  Asses- 

L.  R.  A.  37-28.  sors  of  Pawtucket,  27  R.  L  406,  63 

9De  Leon  v.  Walters,  163  Ala.  Atl.  36;  Robinson  v.  Fair,  128  U.  S. 

502,  19  Ann.  Gas.  914,  50  So.  935;  53,  83,  32  L.   Ed.  415,  421,  9  Sup. 

Wilcox  V.  Luce,  118  Cal.  639,  642,  Ct.  Rep.  30. 

62  Am.  St.  Rep.  305,  307,  45  L.  R.  A.  As  to  priority  of  jurisdiction  in 

579,  582,  50  Pac.  758,  759.  courts  having  concurrent  jurisdic- 

10  See    Redmond    v.    Smith",    22  tion,  see,  post,  §  117. 

Tex.  Civ.  App.  325,  54  S.  W.  636;  3  Courtwright  v.   Bear  River  & 

Scott  V.    Hobe,    108   Wis.    242,    84  Auburn  Water  &  Min.  Co.,  30  Cal. 

X.  W.  181.  573,  580. 

66 


Ch.  v.]  CONCURRENT   JURISDICTION.  §  62 

constitution,  then  the  legislature  may  confer  on  other 
courts  the  powers  and  functions  which  the  constitution 
has  conferred  on  that  court.''  The  grant  of  original  juris- 
diction^ in  the  constitution,  to  a  particular  court,  of  a 
class  of  cases,  without  any  words  excluding  other  courts 
from  exercising  jurisdiction  in  the  same  cases,  does  not 
necessarily  deprive  other  courts  of  concurrent  jurisdic- 
tion in  such  cases.^  Thus,  jurisdiction  in  rem  may  exist 
in  several  courts  at  the  same  time  over  the  same  subject/ 
But  the  court  whose  mesne  or  final  process  has  made  the 
first  actual  seizure  of  the  thing,  must  have  exclusive 
power  over  its  disposal  and  the  distribution  of  the  fund 
arising  therefrom,^  and  the  judgments  of  all  other  courts, 
when  properly  authenticated  and  filed  in  the  court  having 
custody  of  the  fund,  must  be  regarded  as  complete  adjudi- 
cations of  the  subject-matter  of  litigation,  and  be  entitled 
to  distribution  accordingly.^  Thus,  an  action  for  the  non- 
delivery of  freight  may  exist  in  the  federal  district  court 
contemporaneously  with  an  action  for  freight-money  in  a 
state  court,  without  fear  or  danger  of  any  collision  or 
clashing  of  jurisdiction.^^  There  is  concurrent  jurisdic- 
tion in  the  state  courts  with  the  federal  courts  to  collect 

4  Warner  v.  Steamship  Uncle  and  Warner  v.  Steamer  Uncle 
Sam,  9  Cal.  697;  Ord  v.  Steamship  Sam,  9  Cal.  710,  733,  but  overruled 
Uncle  Sam,  13  Cal.  369,  372;  Perry  in  The  Moses  Taylor,  71  U.  S.  (4 
V.  Ames,  26  Cal.  372;  American  Co.  Wall.)  411,  427,  18  L.  Ed.  397,  401. 
V.  Bradford,  27  Cal.  360;  Hill  v.  See,  also,  Meiggs  v.  Scannell,  7 
Smith,  27  Cal.  475,  476;  People  ex  Cal.  405,  408;  Fisher  v.  White,  8 
rel.  Attorney  General  v.  Davidson,  Cal.  418,  422. 

30  Cal.  379;   Courtwright  v.  Bear  8  See,  ante.  §  61,  footnote  2. 

River  &  Auburn  Water  &  Min.  Co.,  9  Russell  v.  Alvarez,  5  Cal.  48. 

30  Cal.  573,  580.  Abatement    of    action    in    state 

5  As  to  original  jurisdiction,  see,  court  by  prior  suit  in  federal  court 
ante,  §  60,  and  vice  versa.     See  note  82  Am. 

G  Courtwright  v.   Bear  River  &  St.  Rep.  582,  595. 

Auburn  Water  &  Min.  Co.,  30  Cal.  lo  Russell  v.  Alvarez,  5  Cal.  48. 

573.  As  to  pendency  of  action  in  state 

7Averlllv.  Steamer  Hartford,  2  and    federal    court    sitting   in    the 

Cal.    309,    approved    in    Taylor   v.  same  state,  see  note  42   L.  R.  A. 

Steamer  Columbia,  5  Cal.  268,  272,  450,  462. 

67 


§  63  CODE   PLEADING   AND   PRACTICE,  [i*t.  1, 

assets  of  a  bankrupt,  whether  the  action  be  legal  or  equi- 
table.^^ As  between  courts  of  concurrent  jurisdiction,  the 
court  first  acquiring  jurisdiction  will  retain  it  through- 
out;^- and  the  general  rule  being  that  courts  can  not  inter- 
fere with  the  judgments  or  decrees  of  other  courts  of  con- 
current jurisdiction.^^  This  rule  is  based,  not  upon  the 
personal  rights  of  the  parties  to  the  action,  but  upon  the 
rights  of  courts  of  co-ordinate  jurisdiction.^* 

§  63.  Conflict  of  jurisdiction.  In  a  case  of  conflict 
in  the  jurisdiction  of  courts  ha\ang  authority  over  the 
parties  and  over  subject-matter  or  res,  the  maxim  "in 
praesentia  majoris  cessant  potentia  minoris"^ — in  the 
presence  of  the  major  the  power  of  the  minor  ceases — 
applies,  and  the  inferior  court  must  give  way  to  the  one 
of  superior  magnitude  and  power.  But  in  the  case  of  co- 
ordinate courts  of  equal  power  and  jurisdiction,  it  is 
otherwise.  We  have  already  seen  that,  as  between  such 
courts,  the  one  to  which  the  jurisdiction  first  attaches  will 
have  exclusive  jurisdiction  to  hear,  try,  adjudge  and  dis- 
jjose  of  the  cause;  and  until  reversed  or  set  aside,  the 
judgment  of  such  court  will  be  binding  upon  all  other 
courts. 

iiWente     v.     Young,     12     Hun  Cof.    Prob.     (Cal.)     237;     Scott    v. 

(N.  Y.)  220.  Runner,  146  Ind.  12,  15,  58  Am.  St. 

12  Louden  Irr.  Canal  Co.  V.  Handy  Rep.  347,  44  N.  E.  755;  Hawkeye 
Ditch  Co.,  22  Colo.  102,  43  Pac.  535.  Ins.  Co.  v.  Huston,  115  Iowa  630, 

13  Anthony  v.  Dunlap,  8  Cal.  26,  89  N.  W.  32;  Lake  Bisteneau  Lum- 
27;  Revolk  v.  Kraemer,  8  Cal.  66,  ber  Co.  v.  Minns,  49  La.  Ann. 
68  Am.  Dec.  304;  Uhfelder  v.  Levy,  1283,  1285;  Beck  v.  Fransham,  21 
9  Cal.  614;  Pixley  v.  Huggins,  15  Minn.  120;  Platto  v.  Duester,  22 
Cal.  134;  Crowley  v.  Davis,  37  Cal.  Wis.  486. 

268,  269;  Flaherty  v.  Kelly,  51  Cal.  Exhaustive  discussion  of  the  ex- 

146;    Spreckels  v.  Hawaiian  Com-  elusive  and  concurrent  jurisdiction 

mercial  &  Sugar  Co.,  117  Cal.  377,  of  courts  will  be  found  in  1  Pome- 

382,  49  Pac.  ^53;   Wolfe  v.  Titus,  roy's  Eq.  Jur.  (4th  ed.),  §§  146-189. 

124    Cal.   264,    269,    56    Pac.    1042;  14  Uhlfelder  v.  Levy,  9  Cal.  614. 

Murphy,   Guardianship   of,    1   Cof.  i  Broom's  Legal  Maxima,  pp.  Ill, 

Prob.  (Cal.)  108;  Burton,  In  re,  5  112. 


G8 


CHAPTER  VI. 

JURISDICTION SOURCES  OF. 

§  64.  In  general. 

§  65.  Legislative  regulation  and  control. 

§  66.  Power  to  establish  courts. 

§  67.  New  causes  of  action. 

§  68.  Judicial  authority — In  general. 

§  69.  Rule  as  to  jurisdiction. 

§  70.  Elements  of  jurisdiction  twofold. 

§  71.  Over  the  subject-matter  of  the  action. 

§  72.  Over  the  person  of  the  defendant. 

§  73.  Over  the  remedy  or  relief. 

§  74.  Void  proceedings. 

§  75.  Voidable  proceedings. 

§  76.  Jurisdiction  by  consent  of  parties. 

§  64.  In  general.  Courts  have  no  inherent  power  or 
jurisdiction  in  and  of  themselves.  They  can  do  nothing 
not  authorized  by  law,^  and  can  not  transcend  the  juris- 
diction conferred  by  such  law.-  The  source  of  the  powers 
and  jurisdiction  of  courts  is  the  constitution  and  the  stat- 
utes establishing  and  regulating  courts.  State  courts 
derive  their  authority,  power  and  jurisdiction  from  the 
state  constitution  and  statutes  of  the  particular  state,^ 
and  their  jurisdiction  is  limited  to  the  state,  or  even  to  the 
district  or  other  subdivision  in  which  the  particular  court 
sits.^    Original  or  appellate  jurisdiction  can  not  be  con- 

1  Withers  v.  Patterson,  27  Tex.  O'Fallon  v.  Elliott,  1  Mo.  3G4; 
491,  495,  86  Am.  Dec.  643,  646.  Taaffe  v.  Ryan,  25  Mo.  App.  563; 

2  Baker  v.  Chisholm,  3  Tex.  158;  Reucher  v.  Anderson,  93  N.  C.  105; 
Cowan  V.  Nixon,  28  Tex.  230;  Boll-  Messner  v.  Giddings,  65  Tex.  301. 
man.  Ex  parte,  8  U.  S.  (4  Cr.)  75,  4  Stevens  v.  Irwin,  12  Cal.  306, 
93,  2  L.  Ed,  554,  560.  308;   Belcher  v.  Chambers,  53  Cal. 

See,  also,  ante,  §  39.  635,  overruling  Hahn  v.  Kelly,  34 

•^  McNealy    v.    Gregory,    13    Fla.      Cal.  391;  94  Am.  Dec.  742. 
417;  Chiapella  v.  Moni,  5  La.  380;  Jjdgment   in  rem  upon  publica- 

69 


§  65  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

ferred  by  the  consent  of  tlie  parties^  or  by  a  rule  of  court  ;*' 
but  courts  may  have  ancillary  and  incidental  jurisdiction."^ 
Thus,  a  court  has  the  additional  power  and  jurisdiction  to 
carry  its  final  determination,  whether  judgment  or  decree, 
into  effect,  and  to  take  such  steps  and  do  such  acts  as  may 
be  necessary  for  the  accomplishment  of  this  purpose.^ 
And  where  it  is  provided  generally  that  when  jurisdiction 
is  by  statute  conferred  on  a  court,  all  means  necessary  to 
carry  it  into  effect  are  also  given,  and  in  the  exercise  of 
power  conferred,  if  the  method  of  proceeding  be  not  spe- 
cially pointed  out  by  statute,  any  suitable  process  or  mode 
may  be  adopted  by  the  court,  which  mode  may  appear 
most  conformable  to  the  spirit  of  the  law.^  An  inferior 
court  being  without  jurisdiction  in  the  premises,  an  ap- 
pellate court  can  acquire  none  by  appeal;^"  and,  on  the 
other  hand,  where  a  court's  jurisdiction  over  the  subject- 
matter  of  an  action  is  appellate  only,  the  cause  must  be 
brought  to  it  by  an  appeal  taken  in  the  regular  form  and 
manner.  ^^ 

§  65.  Legislative  kegulation  and  control.  Where 
state  courts  are  established  by  the  constitution,  and  their 
powers  and  jurisdiction  defined,  the  legislature  can  not 

tion    against    nonresident    owner,  7  See  Chesapeake  &  O.  R.  Co.  v. 

binds  the  property,  but  is  a  nullity  Swayze,  60  N.  J.  Eq.  417,  62  N.  J. 

as  a  personal  claim  against  such  Eq.    369,    47   Atl.    28;    Albright   v. 

defendant.— Belcher  v.  Chambers,  Allday     (Tex.),     37     S.     W.     646; 

53Cal.  635;  Arnold  v.Kahn,  67  Cal.  Houghton    v.    Rice.    54    Tex.    Civ. 

472.  473.  8  Pac.  36;   Loaiza  v.  Su-  ^PP"  ^^^'  ^^  S.  W.  349;   Keneweg 

perior    Court,    85    Cal.    11,    28,    20  ^^-  ^-  Schilansky.  47  W.  Va.  287. 

Am.  St.  Rep.  197,  206.  9  L.  R.  A.  ^^   S.  E.   773;    Rice  v.   Sharpleigh 

376.    24    Pac.    707;     Blumberg    v.  Hardware  Co..  85  Fed.  559. 

Birch.  99  Cal.  416.  417.  37  Am.  St.  '^  ^^^^^^  ^-  ^^"^"^1  Reserve  Fund 

Rep.  67.  68.  34  Pac.  102;   Smith  v.  ^ife   Assoc,    50   C.    C.   A.   339,    61 

Supreme  lodge.  12  Cal.  App.  190,  «-.  R.  A.  717.  112  Fed.  453.  reversing 

106  Pac.  1103;    Pennoyer  v.  Neff.  ^^'^   ^'^-   ''''   ^^'^'^   ^^O   U.    S. 

95  U.  S.  714.  24  L.  Ed.  265.  ^^''  ^'  ^-  ^^-  ^S?.  23  Sup.  Ct.  Rep. 

707. 

See  not^es   16   L.    R.  A.   234;    59  ^  ^^.^^  ^    ^^^^^^  ^5  ^^^^^  254, 

L.  R.  A.  735.  gy  p^^   4Q 

5  See.  ante,  §  44.  lo  Baker  v.  Chisholm.  3  Tex.  158. 

6  Bell  V.  O'Rurke,  U  La.  121.  n  Ginn  v.  Rogers,  9  111.  135. 

70 


ch.  VI.] 


LEGISLATIVE  REGULATION. 


§65 


add  to  or  take  away  from  those  powers  and  that  jurisdic- 
tion;^ but  the  legislature  may  prescribe  the  method  or 
manner  in  which  those  powers  and  that  jurisdiction  may 
be  exercised,-  and  such  regulation  will  be  binding  on  the 
courts,  except  in  those  cases  in  which  the  regulations  in- 
fringe upon  or  impair  the  constitutional  powers  of  the 
court,  and  thus  practically  amounting  to  a  deprivation  of 
power  or  jurisdiction.^  To  this  general  rule  there  are 
certain  well-recognized  exceptions,  which  extend  the 
power  of  the  legislature  so  that  it  may  enlarge  the  consti- 
tutional powers  and  jurisdiction  of  the  courts,  or  may 
take  away  from  the  courts  certain  powers  and  jurisdic- 
tion invested  in  them  by  the  constitution.  Two  illustra- 
tions of  these  exceptions  must  suffice :  Where  a  state  stat- 
ute effects  an  enlargement  of  equitable  rights,  that  statute 
may  be  administered  and  those  enlarged  rights  granted 
or  enforced  by  a  federal  court  within  whose  district  the 
state  is  situated,  while  sitting  in  that  state/  although  the 


1  But  see  exceptions  noted  in 
last  part  of  section,  footnotes  4-7, 
and  Missouri  River  Tel.  Co.  v.  Na- 
tional Bank,  74  111.  219. 

See,  post,  §  68. 

2Harker,  Ex  parte,  49  Cal.  465, 
467;  Jessup,  In  re,  81  Cal.  408, 
470,  482,  6  L.  R.  A.  594,  21  Pac. 
976,  22  Pac.  742;  Bacon  v.  Bacon, 
150  Cal.  477,  484,  89  Pac.  317,  320; 
Broadwell  v.  People,  76  111.  555; 
State  ex  rel.  Pontchartrain  R.  Co. 
V.  Judge,  22  La.  Ann.  565,  567; 
Jefferson  County  Supervisors  v. 
Arrighi,  54  Miss.  668,  672. 

3  Id. 

■i  See,  among  other  cases,  Brod- 
erick's  Will,  In  re,  88  U.  S.  (21 
Wall.)  503,  22  L.  Ed.  599;  Chap- 
man V.  Brewer,  114  U.  S.  171,  29 
L.  Ed.  85,  5  Sup.  Ct.  Rep.  805; 
Gromley  v.  Clark,  134  U.  S.  348,  33 
L.  Ed.  914,  10  Sup.  Ct.  Rep.  557; 
Wehrman    v.    Conklin,    155    U.    S. 


324,  39  L.  Ed.  173,  15  Sup.  Ct.  Rep. 
132;  Bardon  v.  Land  &  River  Imp. 
Co.,  157  U.  S.  330,  39  L.  Ed.  720, 
15  Sup.  Ct.  Rep,  651;  Divine  v. 
Los  Angeles,  City  of,  202  U.  S. 
333,  50  L.  Ed.  1053,  26  Sup.  Ct. 
Rep.  652;  United  States  Life  Ins. 
Co.  V.  Cable,  39  C.  C.  A.  264,  98 
Fed.  764;  Southern  Pine  Co.  v. 
Hall,  44  C.  C.  A.  363,  105  Fed.  88; 
Williams  v.  Crabb,  54  C.  C.  A.  213, 
117  Fed.  198,  59  L.  R.  A.  425; 
Sawyer  v.  White,  58  C.  C.  A.  587, 
122  Fed.  227;  Brun  v.  Mann,  80 
C.  C.  A.  513,  151  Fed.  149,  152,  12 
L.  R.  A.  (N.  S.)  154;  American 
Assoc,  v.  Williams,  93  C,  C.  A.  1, 
166  Fed.  17;  New  Jersey  &  N.  C. 
Land  &  Lumber  Co.  v.  Gardner- 
Lacy  Lumber  Co.,  102  C.  C.  A.  220, 
178  Fed.  779;  Ames  Realty  Co.  v. 
Big  Indian  Min.  Co.,  146  Fed.  174, 
175,  176;  North  Carolina  Min.  Co. 
V.    Westfeldt,    151    Fed.    298,    299; 


71 


§§6G,  67  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

power  or  jurisdiction  is  in  excess  of  that  which  such 
federal  court  possesses  under  the  federal  constitution,^ 
On  the  other  hand,  where  the  legislature,  under  its  power 
granted  by  the  constitution,  erects  a  municipal  corpora- 
tion and  grants  to  it  the  power  to  regulate  and  control  its 
streets,  and  the  like,  it  thereby  invests  such  municipal 
corporation  with  sovereign  power  in  respect  to  the  things 
thus  granted,  and  any  ordinance  passed  or  regulation 
made  by  such  municipality  withdraws  the  matter  from  the 
cognizance  of  the  courts,**  at  least  in  the  first  instance ;  it 
is  only  when  the  municipality  exceeds  the  powers  thus 
granted  that  the  courts  can  interfere.'^ 

§  66.   Power  to  establish  courts.     The  power  to 

establish  courts  may  be  conferred  upon  the  legislature  by 
the  constitution ;  and  where  the  power  granted  relates  to 
courts  of  civil  and  criminal  jurisdiction,  the  two  jurisdic- 
tions need  not  be  vested  by  the  legislature  in  the  same 
court. ^  Under  such  a  power  the  legislature  may  grant  to 
new  courts  a  jurisdiction  concurrent  with  the  jurisdiction 
of  a  court  already  in  existence,-  provided,  however,  that 
it  does  not  interfere  with  the  constitutional  powers  and 
jurisdiction  of  the  pre-existing  court. ^ 

§  67.    New  causes  of  action.    The  legislature  may 

create  new  rights  and  duties  which  will  be  new  causes  of 
action,  and  may  designate  a  particular  court  or  courts  in 
which  cognizable,  in  which  case  no  tribunal  other  than  the 

Morrill  v.  American  Reserve  Bond  7  Weil   v.   Ricord,   24   N,   J.   Eq. 

Co.,    151    Fed.    314,    316;    Jahn    v.  1G3. 

Champagne  Lumber  Co.,  157  Fed.  ,  p^^^^j^  ^^  ^^j    Novell  v.  Kent 

413;    United  States  v.  Leslie,   167  ^^^^^^.    Treasurer,    36    Mich.    332, 

^®^-  ^**-  333;  People  v.  Hurst,  41  Mich.  328, 

^  ^^-  333. 

6  Stoudinger  v.  Newark,  City  of, 
28   N.   J.   Eq.    (1   Stew.)    187,  189;  ^  Wibarger,  Ex  parte,  41  Tex.  Cr 

Milhan  v.  Sharp,  17  Barb.  (N.  Y.)       ^^P-  ^14,  55  S.  W.  968. 
435,  437,  9  How.  Pr.  102,  affirmed  •".  See  cases  footnote  1,  this  sec^ 

28  Barb.   228,  7   Abb.   Pr.   220,   27      tion. 
N.  Y.  611,  84  Am.  Dec.  314. 

72 


,li.  \i.]  JUDICIAL   AUTHOKITY.  §68 

one  designated  will  have  power  and  jurisdiction  to  enforce 
the  statute.^  Where  the  jurisdiction  of  special  cause  may 
be  controlled  by  the  legislature  that  body  can  not  confer 
jurisdiction  over  such  causes  except  to  such  tribunals  as 
are  mentioned  in  the  constitution.-  Thus,  the  legislature 
may  authorize  judges  to  perform  certain  duties  at  cham- 
bers in  respect  to  causes,^  but  some  established  court  must 
have  jurisdiction  of  the  cause,"*  and  if  the  legislature  thus 
confers  a  power  not  incidental  to  a  pending  cause,  the 
statute  will  be  invalid.^  Where  the  constitution  confers 
jurisdiction  over  a  designated  class  of  actions  upon  speci- 
fied tribunals,  the  legislature  may  not  confer  that  juris- 
diction upon  another  tribunal  or  officer.^ 

<^  68.  Judicial  authority — In  general.  The  judicial 
function  is  essential  to  jurisdiction;  that  function  has 
been  already  sufficiently  discussed.^  A  judicial  tribunal 
established  by  the  constitution  is  in  no  way  dependent  on 
the  legislature  for  its  existence,  authority,  or  jurisdic- 
tion f  but  an  inferior  court,  or  court  of  especial  or  limited 
jurisdiction,  left  by  the  constitution  to  be  provided  for 
and  established  by  the  legislature,  is  dependent  upon  the 
act  of  the  legislature  calling  it  into  being,  alike,  for  its 
existence,  authority,  and  jurisdiction.^  Courts  of  the  latter 

1  Aldrich  v.  Hawkins,  6  Blackf.  i  See,  ante,  §  32. 

(Ind.)  128.  2  See  cases  cited  footnote  3,  this 

2  Spencer   Creek   Water   Co.    v.      section. 

Valleio,    City    of,    48    Cal.    70,    72;  _          .     .         ,       ^             ..           . 

•■  •    ^    •'        '                      r!  r^  ■,  Commission    for    transaction    or 

Green  v.   Superior  Court,   78   Cal.  „      ,      .             ,.  ^, 

„^  .„        „„_    _,.,  tlie  business  ot  the  supreme  court 
556,  561,  21  Pac.  307,  541. 

3  As  to  powers  and  duties  at  ^^n  not  be  established  by  the  leg- 
chambers  of  judges,  see,  ante,  §§  islature.-State  ex  rel.  Hovoy  v. 
^g  55  Noble,  lis  Ind.  350,  10  Am.  St.  Rep. 

Tspencer    Creek    Water    Co.    v.  143.  4  L.  R.  A.  101.  21  N.  E.  244 

Vallejo,  City  of,  48  Cal.  70,  73.  3  Perkins  v.  Corbin,  45  Ala.  103, 

r.  Carter  v.  Gear,  197  U.  S.  353,  118,    6    Am.    Rep.    698;    Winter   v. 

49  L.  Ed.  787,  25  Sup.  Ct.  Rep.  491,  Sayre.  118  Ala.  1,  24  So.  89;  People 

affirming  16  Hawaii  244.  ex    rel.    Covell    v.    Kent    County 

(1  Spencer    Creek    Water    Co.    v.  Treasurer.  36  Mich.  332,  333;  State 

Vallejo,  City  of,  48  Cal.  70,  73.  v.  Smith,  65  N.  C.  370. 

73 


§  69  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

class  may  have  their  powers  cut  down*  or  enlarged,  or  the 
court  may  be  entirely  abolished  by  an  act  of  the  legisla- 
ture, w^hich  created  it;^  their  obliteration  destroys  the 
judicial  powers  and  functions  of  the  judges  presiding 
therein,®  in  the  absence  of  a  reservation  or  exception  in 
their  favor.'^ 

§  69.  Rule  as  to  jukisdiction.  The  rule  at  the  Eng- 
lish common  law  was  that  jurisdiction  was  presumed  in 
the  case  of  courts  of  general  jurisdiction,^  and  nothing 
was  intended  to  be  outside  of  the  jurisdiction  of  the  court, 
except  that  which  especially  appeared  to  be  so ;  but  this 
presumption  was  not  indulged  in  favor  of  inferior  courts 
whose  jurisdiction  was  limited,  and  nothing  was  regarded 
as  within  their  jurisdiction  except  that  which  was  ex- 
pressly alleged  to  be.^  This  rule  as  to  the  presumption  as 
to  the  jurisdiction  of  courts  still  holds  good,^  even  under 
the  reformed  system  of  judicature.^  The  presumption  is 
indulged  in  favor  of  county  courts,  where  of  general 

4  Greer,  In  re,  58  Kan.  268,  48  Repr.  357;  Peacock  v.  Bell,'  1 
Pac.  950.  Saund.  73,  75,  85  Eng.  Repr.  84,  88. 

5  See  cases  footnote  3,  this  note.  ^  See  Haywood  v.  Collins,  60  111. 
gj,                                                            333;    Morse  v.   Presley,   25   N.  H. 

299 

7  Perkins  v.  Corbin,  45  Ala.  103,  /crannis  v.  Superior  Court,  143 

118,  6  Am.  Rep.  698,  702.  See  Pope  ^al.  630.  77  Pac.  647;    Parsons  v. 

V.   Lewis,   4   Ala.   487;    Nugent  v.  ^gjg^  ^44  ^al.  410,  77  Pac.  1007; 

State,  18  Ala.  521;  Conner  v.  New  Del  Campo  v.  Camarillo,  154  Cal. 

York,   4   N.   Y.   Super.    (2  Landf.)  647,  98  Pac.  1049;  Carey  v.  Reeves, 

355,  affirmed  5  N.  Y.  285;   Com.  v.  32  Kan.  718,  5  Pac.  22;  English  v. 

Mann,    5   Watts   &    S.    (Pa.)    418;  Woodman,    40    Kan.    752,  '21    Pac. 

Kellogg   V.    Oshkosh,    City   of,    14  283;  Poll  v.  Hicks,  67  Kan.  191,  72 

Wis.  623;   Butler  v.  Pennsylvania,  P^c.  847;  Beach  v.  Spokane  Ranch 

5L  U.  S.  (10  How.)  402,  13  L.  Ed.  ^  Water  Co.,  25  Mont.  379,  65  Pac. 

472;  Blcomer  v.  Stalley.  5  McL.  ^^^'  ^^^^^  ^^  ^^^-  ^^^P^^  ^-  ^^^- 
,ro    .^.    T.  ^    ^        n.T      .rrr.  trlct  Court,  38  Mout.  166,  129  Am. 

158,  161,  Fed.  Cas.  No.  1559.  -^    „         ,„„    „^   ,      _      '    ,„    „  , 

St.   Rep.   636,   35   L.   R.  A.    (N.   S.) 

lAsto  presumptions  respecting  io98,  99  Pac.  291;  Magee  v.  Big 
jurisdiction,  see,  ante,  §  43.  B^nd  Land  Co.,  51  Wash.  406,  99 

2  Stanian  V.  Davies,  2  Ld.  Raym.  Pac.  16;  Michaelson  v.  Seattle, 
796,  92  Eng.  Repr.  31;  Winford  v.  City  of,  63  Wash.  230,  115  Pac. 
Powell,  2  Ld.  Raym.  1310,  92  Eng.      167. 

74 


eh.  VI.]  RULE   AS   TO   JURISDICTION.  §60 

jurisdiction,^  as  well  as  in  favor  of  probate  courts  having 
exclusive  jurisdiction  of  probate  proceedings.^  Where  an 
action  is  commenced  in  a  court  of  inferior  or  limited 
jurisdiction,  the  complaint  must  show  affirmatively  that 
the  cause  is  within  the  jurisdiction  of  the  court  ;^  and 
where  a  court  of  general  jurisdiction  has  conferred  upon 
it  by  statute  special,  extraordinary  and  summary  powers, 
which  are  exercised  in  a  prescribed  manner,  and  not 
according  to  the  course  of  the  common  law,  and  w^hich 
powers  are  no  part  of  its  general  jurisdiction,^  as  to  those 
powers,  such  court  stands  in  the  same  position,  as  to  its 
jurisdiction,  as  courts  of  inferior  and  limited  jurisdic- 
tion f  and  the  facts  essential  to  the  exercise  of  such  power 
must  appear  from  the  record,^*' — although  it  has  been  said 
that,  under  a  statute  enlarging  the  power  and  jurisdiction 
of  the  court  so  that  an  action  may  be  brought  in  a  county 
in  which  the  defendant  does  not  reside,  it  is  not  necessary 
to  aver  in  the  complaint  the  facts  which  will  give  the  pro- 
cess such  extra-territorial  force.^^  To  render  the  acts  and 
judgments  of  the  court  valid  under  such  a  statute,  the 
power  must  be  strictly  pursued  ;^2  the  statute  mil  be 

5  Brown,  Ex  parte,   3   Okla.   Cr.  643;    Furgeson   v.    Jones,    17    Ore. 

329,  105  Pac.  577;  Rutenic  v.  Ham-  204,  11  Am.  St.  Rep.  808,  3  L.  R.  A. 

akar,  40  Ore.  444,  67  Pac.  196.  620,   20   Pac.   842;    De  Vail  v.   De 

0  See  Green  v.  McNeal,  11  Okla.  Vail,  57  Ore.  128,  109  Pac.  755,  110 

519,  69  Pac.  891,  affirmed  11  Okla.  Pac.  705. 

526,    69    Pac.    893;    Magee    v.    Big  lo  Furgeson  v.  Jones,  17  Ore.  704, 

Bend  Land  Co.,  51  Wash.  406,  99  11   Am.   St.    Rep.   808,   3   L.    R.   A. 

Pac.  16.  620,  20  Pac.  842. 

7  Learned  v.  Tietch,  6  Cal.  432.  n  Cody  v.  Ranaud,  1  Colo.  272, 

8  Furgeson  v.  Jones,  17  Ore.  204,  277.  See  Keijney  v.  Greer,  3  111. 
11  Am.  St.  Rep.  808,  3  L.  R.  A.  620,  432;  Hamilton  v.  Dewey,  22  111. 
20  Pac.  842.  490. 

0  Haywood  V.  Collins,  60  111.  333;  12  Foster   v.    Glazener,    27    Ala. 

Kansas  City,  St.  J.  &  C.  B.  R.  Co.  306;    Territory  v.  Delinquent  Tax 

V.    Campbell,    62     Mo.     585,    588;  List,  3  Ariz.  91,  21  Pac.  894;  Jones 

Morse   v.    Presby,    25   N.    H.    302;  v.    Flavella,    126    Cal.    26,    58    Pac. 

Carlton  v.  Washington  Ins.  Co.,  35  312;   Corryell  v.  Lawson,  25  Colo. 

N.  H.  162,  166;  Denning  v.  Corwin,  App.   439,   139   Pac.   28;    Cohen   v. 

11  Wend.  (N.  Y.)  647,  651;  Ander-  United  States,  38  App.  (D.  C.)  126; 

son  V.  Commissioners,  12  Ohio  St.  Fuller  v.  Exchange  Bank,  38  Ind. 

75 


§  70  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

strictly  construed  against  the  power  unless  plainly  ap- 
pearing, and  in  no  case  will  the  words  of  the  statute  be 
extended  by  implication.^^ 

§  70.  Elements  of  jurisdiction  twofold.  The  ele- 
ments of  the  jurisdiction  of  courts  are  twofold:  (1)  Jur- 
isdiction over  tlie  "cause"  or  subject-matter  of  the  action, 
and  (2)  jurisdiction  of  the  persons  of  the  parties  liti- 
gant. A  lack  of  the  first  is  irremediable  ;^  a  lack  of  the 
second  may  be  waived.-  A  distinction  is  also  to  be  drawTi 
between  (1)  jurisdiction  of  a  ''case"  and  (2)  jurisdiction 
of  a  "cause," — that  is,  of  the  subject-matter  of  an  action. 
Jurisdiction  of  a  "case"  means  authority  and  power  over 
all  the  proceedings  from  tlie  initial  step,  or  filing  of  the 
complaint,  to  the  completion  thereof  by  the  satisfaction 
of  the  judgment  pronounced  or  decree  rendered.^  Juris- 
diction of  a  "cause,"  or  the  subject-matter  of  an  action,  is 
the  power  given  by  the  law  of  the  sovereignty  in  which 
the  court  exists.'*  If  the  sovereign  power, — that  is,  if  the 
constitution  or  statutes  of  the  state, — has  not  invested 
the  court  with  authority  and  power, — jurisdiction  over 

App.  573,  78  X.  E.  206;   Easton  v.  See  further  cases  cited  1  Rose's 

Badger,  33  N.  H.  237;    Carlton  v.  U.    S.    Notes    (2d    ed.),    PP.    1077 

Washington  Ins.  Co.,  35  N.  H.  162,  et  seq. 

167;    Embury  v.   Conner,   3   N.  Y.  13  gee  Umbarger  v.  Chaboya.  49 

523,  53  Am.  Dec.  325;  McMahon  v.  cal.  525,  534;  Marltham  v.  Powell, 

Crean,   109   Md.   666,   71  Atl.   997;  33  oa.  5,  11;  Attaquin  v.  Fish,  46 

United  States  Express  Co.  v.  Hur-  Mass.   (5  Mete.)    146;    Whitney  v. 

lock,  120  Md.  112.  Ann.  Cas.  1915A,  stearns,  52  Mass.  (11  Mete.)  320; 

566,  87  Atl.  835;    Hughes  v.  Linn  Travis  v.  Tyler,  73  Mass.  (7  Gray) 

County,  37  Ore.  119,  60  Pac.  845;  J47.  gyck  v.  Dowley,  82  Mass.  (16 

Taylor  v.  Sutherlin-Meade  Tobacco  Grav)   558 

Co.,  107  Va.  789,  14  L.  R.  A.  (N.  S.)  ,1,           \    „  „, 

1135,    60    S.    E.    133;    Thatcher   v.  ^  See,  post,  §  74. 

Powell,  19   U.  S.   (6  Wheat.)    119,  ,    "  ^ee,  post,  §  75. 

120,  5   L.   Ed.  221;    Williamson   v.  s  Comstock  Milling  &  Min.  Co.  v. 

Berry,  49  U.  S.  (8  How.)  495,  531,  Allen,  21  Nev.  325,  31  Pao.  434. 

12   L.   Ed.   1170,  1185;    Mayhcw  v.  4  Weiner    v.    Rumble,    11    Colo. 

Davis,  4  McL.  213,  221,  Fed.  Cas.  G07,  19  Pac.  760;   Taylor,  In  re,  7 

No.  9347;  Edwards  V.  Bales  County,  S.    D.    382,    58    Am.    St.    Rep.    813, 

117  Fed.  529.  45  L.  R.  A.  136,  64  N.  W.  253, 

7G 


Ch.  VI.]  JURISDICTION — SUBJECT-MATTER.  §(1 

the  subject-matter  of  the  cause, — none  exists,^  and  any 
and  all  acts  in  the  premises  on  the  part  of  the  court  in 
respect  thereto  are  void,  and  any  judgment  pronounced 
or  decree  rendered  is  a  nullitj\" 

<^  71.    Over  the   subject-matter   of   the   action. 

Jurisdiction  over  the  subject-matter  of  an  action  is  power 
granted  by  the  sovereignty,^  the  exercise  of  which  may 
be  governed  by  circumstances  and  contingencies,  and  may 
depend  upon : 

1.  Situation  of  the  res,  and  whether  the  same  is  witliin 
the  jurisdiction  of  the  court,  where  the  object  of  the  action 
is  some  disposition  of  the  res ;  in  any  other  case  the  situ- 
ation may  not  be  determinative  of  jurisdiction,  e.  g.,  when 
the  question  before  the  court  relates  to  the  title  to  the 
land,  trespass  upon  the  land,  or  the  enforcement  of  a 
trust  upon  lands  in  another  state.^  Where  all  the  par- 
ties interested  are  properly  before  the  court,  and  the 
action  relates  to  the  enforcement,  or  to  the  rescinding  and 
return  of  money,  under  a  contract  of  sale  and  purchase  of 
lands  located  in  another  state  f  or  of  the  cancellation  of  a 
deed  to  such  lands  ;"*  or  the  enforcement  of  a  trust  relat- 
ing to  lands  in  another  state,^ — in  any  of  which  cases  the 
court  has  jurisdiction  to  dispose  of  the  matter  and  enforce 
its  judgment  pronounced  or  decree  rendered,  by  process 
against  the  party  affected.^ 

•■i  See,  ante,  §64.  3  Loaiza  v.  Levy,  85  Cal.  11,  20 

6  See,  post,  §  74.  Am.  St.   Rep.  197,  9   L.   R.  A.  376, 

1  See,  ante,  §  70.  24  Pac.  707;    People's  State  Bank 

2  First  Nat.  Bank  v.  Eastman,  ^  T'Miller,  83  Kan.  272.  116  Pac. 
144  Cal.  487,  103  Am.  St.  Rep.  95, 
1  Ann.  Cas.  620,  77  Pac.  1043; 
Gassert  v.  Strong,  28  Mont.  18,  98 
Pac.  497;  Lindsley  v.  Union  Silver 
Star  Min.  Co.,  26  Wash.  301,  66  •'  Manley  v.  Carter.  7  Kan.  App. 
Pac  382;  State  v.  Superior  Court,  §6.  52  Pac.  915;  Gassett  v.  Strong. 
52  Wash.  149,  100  Pac.  198;  Olym-      38  Mont.  18,  98  Pac.  497. 

pia   Min.    &    M.   Co.   v.   Kerns,   64  r,  People's   State  Bank  v.   T'Mil- 

Wash.  545,  117  Pac.  260.  ler,  85  Kan.  272,  116  Pac.  SSI. 

77 


884. 

4  McGee  v.  Sweeney,  84  Cal.  100, 
23  Pac.  1117. 


§  72  CODE  PLEADING   AND   PRACTICE.  [Pt.  I, 

2.  Place  of  accrual  of  cause  of  action  may'^  or  may  iiot^ 
have  a  determinative  effect  upon  the  jurisdiction  of  the 
court. 

3.  Local  or  transitory  nature  of  the  action  may  affect 
jurisdiction.  Thus,  where  a  trespass  upon  land  and  a 
removal  of  sand  therefrom  occurs  in  one  state,  and  the 
sand  is  transported  to  another  state  and  there  converted, 
an  action  may  be  maintained  in  the  latter  state  to  recover 
the  value  of  the  sand.^  But  where  a  right  is  granted  or  a 
liability  imposed  by  the  statute  of  another  state  or  by  the 
federal  statute,  the  cause  will  be  entertained  for  the  pur- 
pose and  upon  the  terms  permitted  by  the  lex  loci,  only.^" 
Corporate  stock  the  subject  of  an  action,  the  situs  of  the 
res  is  the  state  where  the  corporation  has  its  main  office.  ^^ 

4.  Nature  and  grounds  of  action,  also,  may  affect  the 
court  and  its  jurisdiction.  Thus,  where  an  election  con- 
test in  the  courts  would  be  vain  and  fruitless,  for  the 
reason  that  another  trial  by  the  state  senate  would  be 
required  to  determine  the  rights  of  the  parties  contestant, 
a  court  will  not  assume  jurisdiction  for  any  purpose.^^ 

§  72.     OVEK  THE  PERSON  OF  THE  DEFENDANT.      JuriS- 

diction  on  the  part  of  the  court  over  the  person  of  the 
defendant,  is  essential  to  the  validity  of  the  proceedings 
and  of  any  judgment  to  be  pronounced  or  decree  ren- 
dered, in  all  those  cases  in  which  it  is  sought  to  bind  the 
party  personally;  but  jurisdiction  of  the  person  of  the 
defendant  is  not  essential  in  those  cases  in  which  the  res 
is  taken  into  the  custody  of  the  court  to  abide  the  final 
determination  of  the  action,  and  when  the  judgment  to 

7  Lawson  v.  Tripp,  34  Utah  28,  9  McGonigle  v.  Atchison,  33  Kan. 
95  Pac.  520.                                                726,  7  Pac.  550. 

10  Ryan  v.  North  Alaska  Salmon 

8  See  McGonigle  v.  Atchison.  33      ^^^  ^53  ^^j   ^gg^  g^  ^^^  ^^^ 

Kan.   726,  7   Pac.   550;    Schmit  v.  nwaite  v.  Kern  River  Min.  & 

Day,  27  Ore.  110,  39  Pac.  870;  Devel.  Co.,  157  Cal.  16,  106  Pac.  98. 
Kuhn    V.    McKay,    7   Wyo.    42,    49  12  Ellison    v.    Barnes,    23    Utah 

Pac.  473,  51  Pac.  205.  183,  63  Pac.  899. 

78 


eh.  VI.]  JURISDICTION  OVER  REMEDY.  §  73 

be  pronounced  or  decree  to  be  rendered  is  to  bind  tbe  res 
only.  Jurisdiction  of  tlie  person  of  a  defendant  can  be 
secured  only  by  the  service  of  process  upon  him  in  the 
manner  provided  by  law,  and  within  the  territorial  juris- 
diction of  the  court/  or  within  some  county  within  the 
state,  where  extraordinary  powers  are  granted  to  the 
court  permitting  suits  on  contracts  to  be  brought  in  any 
county  in  the  state  and  service  of  process  to  be  made  in 
any  other  county  of  the  state.  Jurisdiction  of  the  court 
over  the  person  of  the  defendant  depends  upon  the  law  of 
the  state  in  which  the  court  sits.  Where  the  law  of  the 
state  of  the  court  provides  that  service  may  be  made  upon 
a  nonresident  defendant  by  publication  or  substituted  ser- 
\dce,  such  a  service  will  give  the  court  jurisdiction  within 
the  state,  but  any  judgment  that  may  be  rendered  in  the 
action  Avill  have  no  extra-territorial  force  and  effect,  and 
can  not  be  made  the  basis  of  a  suit  in  a  state  which  does 
not  recognize  the  doctrine  of  such  service  by  publication 
or  substituted  service.^  The  subject  of  service  of  process, 
and  the  requisites  and  sufficiency  to  give  the  court  juris- 
diction, will  be  treated  in  a  subsequent  chapter.^ 

§  73.    Over  the  remedy  or  relief.    In  those  cases 

in  which  the  court  has  no  power  to  enforce  their  determi- 
nation, the  authority  of  the  court  is  incomplete  and  insuf- 
ficient^ and  courts  will  decline  to  exercise  the  jurisdic- 
tion,^  when  it  is  intended  to  be  complete.^  Under  the 
reformed  systems  of  judicature,  in  which  the  same  court 
has  jurisdiction  over  actions  at  law  and  suits  in  equity, 

1  See    Bush    v.    Hanson,    70    III.      Life  Ins.  Co.,  24  N.  J.  L.  (4  Zab.) 
480;    Dumont    v.    Dumont    (N.    J.      222,  232. 

Eq.),  45  Atl.  107;   Lange  v.  Bene-  3  gge,  post,  part  I,  ch.  VI. 

diet,  73  N.  Y.  12,  27,  29  Am.  Rep. 

80,  affirming  8  Hun  362,  which  re-  '  ^^^^'  ^  ^^• 

versed  48   How.   Pr.   465,  writ  of  ^  See,  ante   §  71,  paragraph  4. 

error   dismissed   99   U.    S.   62,   25  3  State  ex  rel.  Watkins  v.  North 

L.  Ed.  469;  King  v.  Poole,  35  Barb.  American  Land  &■  Timber  Co.,  106 

(N.  Y.)  242,  244.  La.   621,  87  Am.  St.   Rep.   309,  31 

2  See    Manlin    v.    Trenton    Mut.  So.  172. 

79 


§§  74,  75         CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

the  plaintiff  may  place  his  action  either  at  law  or  in  equity 
without  raising  a  jurisdictional  question, — it  presents  a 
question  of  practice,  simply, — the  court  having  jurisdic- 
tion over  the  remedy  or  relief  in  either  form  of  the  action.^ 

§  74,    Void    proceedings.      It    has    already    been 

pointed  out  that  defects  and  irregularities  in  court  pro- 
ceedings are  of  two  classes,  to  ^vLt:  (1)  Irremediable,  and 
(2)  remediable.^  Where  the  proceedings  are  void  they 
can  not  be  remedied,  and  all  that  the  court  does  goes  for 
naught.  Thus,  where  the  court  has  no  jurisdiction  over 
the  subject-matter  of  the  action,  its  proceedings,  determi- 
nation and  judgment  are  void,  in  the  largest  sense  of  that 
term,  i.  e.,  can  not  be  remedied  or  made  valid  and  given 
effect.-  Want  of  or  defects  in  jurisdiction  of  the  subject- 
matter  being  fatal  can  not  be  waived,^  and  no  act  or  con- 
sent^ of  the  parties  can  confer  jurisdiction  on  the  court 
in  such  a  case,  because  the  parties  to  an  action  can  not 
create  a  jurisdiction  the  sovereign  power  has  not  vested 
in  the  court.^ 

§  75.    Voidable   proceedings.      Proceedings    of   a 

court  which  are  voidable  merely,  are  distinguishable  from 
those  which  are  void  in  that,  though  void  in  one  sense  of 
that  term,^  they  may  be  remedied,  and  when  remedied  the 

4  Harrigan  V.  Gilchrist,  121  Wis.      Mass.    (21    Pick.)    10:    Carlisle    v. 

127,  99  N.  W.  909.  Weston,  38  Mass.   (21  Pick.)   536: 

1  See  ante   §  38  Hurd  v.  Tombs,  8  Miss.  (7  How.) 

o*  *  D-  1  ^     oc   -NT    Tj  233;  Coffin  v.  Tracy,  3  Cai.  (N.  Y.) 

-•State   V.   Richmond,   26   N.   H. 

n/.A     T^  T->  OA  nr-      A^}^  129;    Buan    v.    Thomas.    2    Johns. 

260;  Damp  v.  Dane,  20  Wis.  431. 

(N.  Y.)   190;   Blin  v.  Campbell,  14 

3  Abat  V.  Songy,  7  Mart.  (La.)  j^^^^^  ^^  y.)  433;  Starr  v.  Roch- 
275;  Brooks  v.  Davis,  34  Mass.  (17  ^^^^^^  ^.^^^^^  ^^^  Trustees,  6  Wend. 
Pick.)  149;  Moore  v.  Ellis,  18  Mich.  ^^  ^^  ^g^^  ^^g.  ^^^^^^  ^  ^^^^^^ 
77;  State  v.  Richmond.  26  N.  H.  ^^^.^  ^..^j^^^  ^^  Trustees,  12  Wend. 
240:  Stoughton  v.  Mott,  13  Vt.  181.  ^^  y.)  165,  167;  Gillard  v.  Sellers, 

4  Consent  as  conferring  jurisdic-  2  Ohio  St.  227;  McHenry  v.  Wal- 
tion  when  and  to  what  extent.—  jgn,  17  Tenn.  (2  Yerg.)  444;  Col- 
See,  ante,  §  44;  post,  §  76.  lamer  v.  Page,  25  Vt.  389. 

oGinn    v.    Rogers,    9    111.    134;  1  State   v.   Richmond,   26   N.   H. 

Preston    v.    Boston,    City    of,    38      239. 

80 


ell.  ^'I.]  JURISDICTION VOIDABLE  PROCEEDINGS.  §  75 

judicial  authority  is  complete;  such  proceedings  may  be 
binding  on  the  parties  until  the  judgment  is  reversed  or 
set  aside,  and  the  defects  may  be  waived.  Thus,  want  of 
jurisdiction  of  the  court  over  the  parties  renders  the 
proceedings  void  in  the  sense  that  they  may  be  set  aside 
and  held  for  naught  on  the  proper  steps  taken  timely  for 
that  purpose;  but  they  are  not  void  in  the  broad  sense 
of  that  term,  i.  e.  they  are  not  irremediable,  as  in  the 
case  of  a  want  of  jurisdiction  over  the  subject-matter  of 
the  action.  Such  a  defect  is  capable  of  being  remedied 
by  proper  procedure,  or  it  may  be  waived  by  the  party 
entitled  to  object  on  that  ground,  who  \\dll  thereafter 
be  bound  by  the  proceedings  and  judgment,  in  all  cases 
where  the  court  had  authority  to  do  the  thing  or  render 
the  judgment  without  the  consent  of  the  parties  thereto. 
Thus,  the  party  over  whom  the  court  has  not  acquired 
proper  jurisdiction,  may  appear  and  submit  the  cause  to 
the  trial  and  determination  of  the  court ;-  by  so  doing  and 
through  such  submission  he  waives  any  objections  he 
might  have  presented  because  of  the  want  of,  or  of  defec- 

2  De  Jarnette  v.  Dryfus,  166  Ala.  bany,   City  of,   15  Wend.    (N.   Y.) 

138,  51  So.  932;  Lord  v.  Hendrie  &  262,  264;   affirmed,  18  Wend.  169; 

B.  Mfg.  Co.,  13  Colo.  393,  22  Pac.  Heard  v.  Holbrook,  21  N.  D.  348, 

782;    Bostwick  v.    Perkins,   4    Ga.  131     N.     W.     251,     distinguishing 

50;  Kinsell  v.  Cahn,  185  111.  208,  56  Miner  v.  Frances,  3  N.  D.  549,  58 

N.  E.  1119;  People  ex  rel.  Thomp-  N.  W.  343  because  of  amendment 

son  V.  Smythe,  232  111.  242,  83  N.  E.  of  statute;   Gulf  Pipe  Line  Co.  v. 

821;  Hall  V.  Williams,  23  Mass.  (6  Vanderberg,    28    Okla.    637.    Ann. 

Pick.)    232,  237,  17  Am.   Dec.  356;  Cas.  1912D,  407.  34  L.  R.  A.  (N.  S.) 

Allen  V.  Welch,  125  Mo.  App.  278,  661,  115  Pac.  782;  Campbell  v.  Wil- 

102  S.  W.  665;  Lesan  Advertising  son,  6  Tex.  393;  St.  Louis,  I.  M.  & 

Co.  V.  Castleman,  165  Mo.  App.  575,  S.  R.  Co.  v.  Bass  (Tex.  Civ.  App. 

148  S.  W.  433;  State  v.  Richmond,  1911),    140    S.    W.    860;    Hoxie    v. 

26  N.  H.  242;   Reynolds  v.  Orvis,  Wright,  2  Vt.  266;  Corbett  v.  Phys- 

7  Cow.  (N.  Y.)  269,  272;  Shumway  icians"    Casualty   Assoc,   135   Wis. 

V.  Stillman,  6  Wend.   (N.  Y.)   447,  505,  16   L.   R.   A.   (N.  S.)    177,  115 

449,    2    Am.    Lead.   Cas.   778,    820;  N.    W.    365;    Hudson    Coal    Co.    v. 

Squires,     Ex     parte,     v.     Broome  Hauf,   18   Wyo.   425,   109   Pac.   21; 

County  Common  Pleas,  10  Wend.  Mayhew  v.  Thatcher,  19  U.  S.  (6 
(N.  Y.)    600;    Van  Wormer  v.  Al-      Wheat.)  129,  5  L.  Ed.  223. 

I  Code  PI.  and  Pr.— 6  gl 


§  76  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

tive,  service  of  the  process  upon  liim.^  This  waiver  cures 
the  defect  of  the  want  of  jurisdiction  of  the  person  on 
the  part  of  the  court.  Such  act  of  appearance  and  sub- 
mission is  but  consenting  that  the  court  might  do  what 
it  already  had  the  power  to  do,  but  for  the  want  of  or 
defect  in  the  ser\dce  of  process.  This  is  quite  a  different 
thing  from  attempting,  by  consent  of  the  parties,  to  con- 
fer upon  a  court  jurisdiction  or  a  power  the  sovereign 
state  had  not  invested  it  with.^  The  subject  of  jurisdic- 
tion through  service  of  process,  manner  or  service,  defects 
in  service,  and  the  remedying  or  waiver  of  same,  will 
be  fully  treated  in  a  subsequent  chapter.^ 

'§>  76.  Jurisdiction  by  consent  of  parties.  As  has 
already  been  pointed  out,^  the  general  rule  is  that  where 
jurisdiction  is  not  conferred  by  law  over  the  subject- 
matter  of  an  action,  it  can  not  be  conferred  by  acquies- 
cence or  consent  of  the  parties  to  the  suit;-  and  neither 
silence  nor  consent  of  the  parties  will  justify  a  court  in 
retaining  jurisdiction  of  an  action  on  a  contract  which  is 

3  Harrison  v.  Harrison,  20  Ala.  1033;  Indianapolis  &  C.  R.  Co.  v. 
629,  56  Am.  Dec.  227;  Simonds  v.  Renner,  17  Ind.  135;  Doctor  v. 
Parker,  42  Mass.  (1  Mete.)  510;  Hartman,  74  Ind.  221;  Winge  v. 
Smith  V.  Whittier,  9  N.  H.  464;  State,  99  Ind.  343;  Tucker  v.  Sel- 
Hanson  v.  Hoitt,  14  N.  H.  60;  lers,  130  Ind.  514,  30  N.  E.  531; 
Thompson  v.  Steamboat  Julius  D.  Johnson  v.  Bouton,  56  Neb.  626,  77 
Morton,  2  Ohio  St.  26,  28,  59  Am.  N.  W.  57;  Armstrong  v.  Mayer,  60 
Dec.  658.  Neb.  423,  83  N.  W.  401;  Crawford 

See  note  23  L.  R.  A.  288.  County  v.  Hathaway,  61  Neb.  317, 

„.             T      ,        rn    Tv/r-  1QO.       85  N.  W.  303;  Vila  V.  Grand  Island 

4  Rice  V.  Locke,  59  Miss.  192;  x-  w  t  p  /^  a  r.  ao 
^  ,,  T,  or  tr*.  ooo  Elec.  Light,  Ice  &  C.  S.  Co.,  68 
CoUamer  V.  Page,  35  Vt.  389.  ^^  ^    ooo    -^n   «        o.    «         .««    i 

Neb.  222,  110  Am.  St.  Rep.  400,  4 

5  See  part  I,  ch.  VI.  ^„„_  Cas.  59,  63   L.  R.  A.  791.  94 

1  See,  ante,  §  44.  N.  W.  136;  Edney  v.  Baum,  70  Neb. 

2  Ball  V.  Putnam,  123  Cal.  f34,  159,  97  N.  W.  252;  Hobbs  v.  Ger- 
55  Pac.  773;  Stimson  Computing  man-American  Doctors,  14  Okla. 
Scale  Co.  v.  Superior  Court,  12  Cal.  236,  78  Pac.  356;  Catlin  v.  Jones, 
App.  536,  107  Pac.  1013;  Whipple  56  Ore.  492,  108  Pac.  633;  White  v. 
V.  Stevenson,  25  Colo.  447,  55  Pac.  Seely,  1  Utah  191;  Conant  v.  Deep 
188;  McKinnon  v.  Hall,  10  Colo.  Creek  &  C.  Valley  Irr.  Co.,  23  Utah 
App.  291,  50  Pac.  1052;  Wayne  v.  627,  90  Am.  St.  Rep.  721,  66  Pac. 
Alpach,    20    Idaho    144,    116    Pac.  188. 

82 


ch.  VI.] 


JURISDICTION  BY  CONSENT. 


§7(J 


void  because  against  public  policy.^  Likewise  a  .iudge 
may  not,  by  consent  of  the  parties  to  an  action,  delegate 
his  judicial  authority  or  power  to  another  person,  and 
adopt  the  acts  of  such  other  person  as  his  own.^  Neither 
acquiescence  nor  consent  of  the  parties  can  give  a  court 
jurisdiction  of  or  power  over  an  appeal  where  the  law 
gives  none  f  and,  conversely,  consent  can  not  confer  upon 
a  court  of  appellate  jurisdiction  only,  powers  to  hear  and 
determine  a  cause  in  the  first  instance.^ 


3  Ball  V,  Putnam,  123  Cal.  134, 
55  Pac.  773. 

4  See  Andrews  v.  Wheaton,  23 
Conn.  105;  Hall  v.  Marks,  34  111. 
362;  Hords  v.  Burton,  79  111.  509; 
Hoagland  v.  Creed,  81  111.  506; 
Winchester  v.  Ayres,  4  G.  Greene 
(Iowa)  104;  Michales  v.  Hine,  3 
Iowa  479;    Schooley  v.  Thorn,   I 


N.  J.  L.  (Coxe)   71;  Williams,  Ex 
parte,  12  Tenn.  (4  Yerg.)  579. 

5  Moore  v.  Ellis,  18  Mich.  77; 
Clark  V.  Conn,  1  Munf.  (Va.)  161; 
Dykeman  v.  Budd,  3  Wis.  643. 

6  Ginn    v.    Rogers,    9    111.    134 
Fleschman  v.  Walker,  91  111.  321 
Collins  V.  Collins,  37  Pa.  St.  388 
White  V.  Buchanan,  46   Tenn.   (6 
Coldw.)  33. 


83 


§" 

§78. 

§  79, 

§80, 

§81, 

§82. 

§83. 

§84. 

§85. 

§86. 

§87. 

§88. 

§89. 

§90. 

§91. 

§92. 

§93. 

§94. 

^9o. 

§96. 

§97. 

§98. 

§99. 

§100. 

§101. 

CHAPTER  VII. 

JURISDICTION 01-  STATE  COURTS. 

In  general. 

Particular  jurisdiction  of  state  courts. 

California  courts — Constitutional  jurisdiction. 

Supreme  Court — Formation  of. 

Election  and  term  of  office  of  justices. 

Vacancies:   Disqualification:   Inability  to 

act. 

Jurisdiction  of— Nature  and  extent. 

Appellate  and  original  jurisdiction. 

Amount  in  controversy. 


Rules  of  procedure. 

District  Courts  of  Appeal — Nature  of  courts. 

The  districts,  and  places  of  holding  court. 

Justices :  term  of  office :  vacancies. 

Appellate  and  original  jurisdiction. 

Transfer  of  causes  to  and  from. 


Superior  Courts — Courts  of  general  original  juris- 
diction. 

Election  and  term  of  office  of  judges. 

Presiding  justice — Selection  and  duties. 

Vacancies :  forfeiture  of  office. 

Holding  court  in  another  county. 

Judges  pro  tempore. 


Jurisdiction — In  general. 

Original  and  appellate  jurisdiction. 

Amount  in  controversy. 


k Juvenile  Court — Dependent  and  de- 
linquent children. 
§  102. Jurisdiction  in  specific  classes  of  cases — Abate- 
ment of  nuisance. 

§  103. Divorce  and  annulment. 

§  104. Forcible  entry  and  detainer, 

§  105. Fugitives  from  another  state. 

84 


ell.  VII.]  STATE  COURTS — IN  GENERAL.  §  77 

§  106. Lost  record :  presumption. 

§  107. Partition  fence — Recovery  of  value. 

§  108. Person  or  property  in  another  state. 

§  109. Probiite  matters. 

§  110. Taxes  and  assessments. 

§  111. Validity  of  election  by  corporation. 

§  112.  Justices'  Courts — Establishment  of. 

§113. Term  of  office  of  justices:  vacancies:  holding 

over. 

§114. Jurisdiction — In  general. 

§  115. Jurisdiction  must  affirmatively  appear. 

§116. Title   or  possession   of   real   property  in- 
volved— Certification  to  Superior  Court. 

§  117.  Priority  of  jurisdiction — State  and  federal  courts. 

§77.  In  general.  By  the  phrase,  '^ jurisdiction  of  a 
state  court,"  is  usually  meant  ''within  the  state. "^  In 
a  constitutional  provision  requiring  the  jurisdiction  of 
the  several  District  Courts — or  other  classes  of  inferior 
state  courts — to  be  uniform,  the  word  embraces  not  only 
the  subject-matter  of  the  action,  but  also  the  territory 
within  which  the  court  may  act  or  send  its  process. ^ 
Whenever  the  constitution  or  the  statute  prescribes  cer- 
tain specific  acts  to  be  done  as  prerequisite  to  the  acquir- 
ing of  jurisdiction  or  to  the  enforcement  of  a  legal  rem- 
edy, such  acts  must  be  substantially  performed  in  the 
manner  prescribed.-''  In  the  case  of  states  recently  ad- 
mitted into  the  Union,  while  the  jurisdiction  of  the  courts 
of  such  states  extends  to  hearing  and  determining  cases 
left  pending  in  the  late  United  states  territorial  courts, 

1  Stevens  v.  Irwin,  12  Cal.  .306,  Arbitration  Statutes,  being  in 
308.  derogation    of    tlie    common    law, 

2  State  V.  Magney,  52  Neb.  508,  must  be  strictly  pursued,  in  order 
72  N.  W.  1006.  See  Newburn  v.  to  render  the  proceedings  valid. — 
Durham,  10  Tex.  Civ.  App.  655,  32  Ready  v.  Tampa  Elec.  Co.,  51  Fla. 
S.  W.  112.  -  296;  41  So.  537;  Burkland  v.  John- 

"  Steel  V.   Steel.  1  Nev.  27,  31;       son,  50  Neb.  865,  70  N.  W.  391. 
Paul  V.  Armstrong,  1  Nev.  82,  97. 

85 


§  78  CODE  PLEADING  AND  PRACTICE.  [Pt.  1, 

to  whicli  they  are  successors,*  such  jurisdiction  does  not 
extend  to  a  right  to  hear  and  determine  an  action  involv- 
ing the  right  of  an  adverse  claimant  to  public  lands.^ 

§  78.  Paeticulak  jurisdiction  of  state  courts.  State 
courts  have  jurisdiction  in  the  following  cases,  among 
others,  over  subject-matter  situated  within  the  exclusive 
control  of  the  United  States  government,  or  over  parties, 
subjects  of  a  foreign  government,  resident  within  the 
state : 

1.  Assault  and  battery. — In  an  action  for  assault  and 
battery  in  a  United  States  navy  yard  although  the  state 
has  ceded  exclusive  jurisdiction  of  that  place  to  the  United 
States.^  So,  also,  state  courts  have  jurisdiction  of  crimes 
committed  in  the  United  States  military  reservation  of 
Fort  Leavenworth,  for  the  reason  that  such  reservation 
was  not  purchased  with  the  consent  of  the  state  of  Kan- 
sas.2  The  act  of  the  legislature,  ceding  the  navy  yard  at 
Brooklyn  to  the  United  States — which  provides  that  the 
cession  ''shall  not  prevent  the  operation  of  the  laws  of 
the  state"  within  the  same — has  the  effect  of  preserving 
the  jurisdiction  of  the  state  over  offenses  committed  on 
board  a  government  ship  in  the  navy  yard,  and  over  the 
person  of  the  offender.^ 

2.  Contracts. — State  courts  have  jurisdiction  over  ac- 
tions on  a  contract  made  in  a  foreign  country,*  or  of  an 
action  on  a  policy  of  insurance  issued  in  the  state  by  a 
resident  agent  of  a  foreign  insurance  company.^ 

4  Hastings    v.    Johnson,    2    Nev,  2  Clay  v.  State,  4  Kan.  49. 

190;    Sparrow    v.    Strong,    2    Nev.  3  People   v.   Lane,    1    Edm.    Sel. 

362,  364.  Cas.  (N.  Y.)  116. 

5  Grandin  v.  La  Bar,  3  N.  D.  446,  4  Skinner  v.  Tinker,  34  Barb, 
57  N.  W.  241.  (N.  Y.)  333. 

1  Armstrong   v.    Foote,    11    Abb,  5  Bums  v.  Provincial  Ins.  Co.,  13 

Pr.  (N.  Y.)  384.  Abb.  Pr.  (N.  Y.)  425,  35  Barb.  525; 

Compare:  Dibble  v.  Clapp,  31  Watson  v.  Cabot  Bank,  7  N.  Y. 
How.  Pr.  (N.  Y.)  420,  Sheld.  123.  Super.  (5  Sandf.)  423. 

86 


ch.  VII.] 


PARTICULAR   JURISDICTIONS. 


§78 


3.  Customs  and  duties. — Of  actions  by  collectors  of 
United  States  customs  upon  receiptor 's  agreement  f  and 
of  actions  on  bonds  given  for  duties  to  the  United  States.' 

4.  Foreign  consul. — We  have  already  seen  that  there 
is  a  conflict  in  the  decisions  of  the  state  as  to  whether  a 
federal  statute  giving  the  federal  district  courts  jurisdic- 
tion of  actions  against  foreign  consul  confers  upon  the 
state  courts  concurrent  jurisdiction  in  actions  against 
foreign  consul.^ 

5.  Foreign  governments. — Foreign  governments  may 
sue  in  the  state  courts  in  their  federative  names, ^ 

6.  Foreign  residents. — State  courts  have  jurisdiction  in 
actions  against  foreign  executors  or  administrators  who 
are  residents  of  the  state.^^ 

7.  Habeas  corpus. — To  discharge  on  habeas  corpus  per- 
sons enlisted  in  the  United  States  army.^^ 


6  Sailly  V.  Cleveland,  10  Wend. 
(N.  Y.)  156. 

7  United  States  v.  Dodge,  14 
Johns.  (N.  Y.)  95. 

8  See,  ante,  §  61,  footnotes  7  et 
seq.  and  text  going  therewith. 

0  Delafield  v.  Illinois,  State  of, 
2  Hill  (N.  Y.)  159,  26  Wend.  192, 
affirming  8  Paige  Ch.  527;  Burrall 
V.  Jewett,  2  Paige  Ch.  (N.  Y.)  134; 
Gibson  v.  Woodworth,  8  Paige  Ch. 
(N.  Y.)  132;  Mills  v.  Thursby,  2 
Abb.  Pr.  (N.  Y.)  432,  437,  12  How. 
Pr.  385;  Mexico,  Republic  of,  v. 
Arrangois,  3  Abb.  Pr.  (N.  Y.)  470; 
Mexico,  Republic  of,  v.  De  Aran- 
gois,  11  How.  Pr.  (N.  Y.)  1;  af- 
firmed, 12  N.  Y.  Super.  (3  Duer.) 
634;  Manning  v.  Nicaragua,  State 
of,  14  How.  Pr.  (N.  Y.)  517. 

10  Sere  v.  Coit,  5  Abb.  Pr. 
(N.  Y.)  481;  Gulick  v.  Gulick,  33 
Barb.  (N.  Y.)  92,  21  How.  Pr.  22; 
Montalvan  v.  Clover,  33  Barb. 
(N.  Y.)  190. 

See,  also,  post,  §  108. 

Foreign  executor  or  administra- 


tor can  not  be  sued  in  courts  of 
law  of  New  York;  they  are  with- 
out jurisdiction  in  the  matter. — 
Metcalf  V.  Clark,  41  Barb.  (N.  Y.) 
45.  Same  is  true  in  Nebraska.  See 
Burton  v.  Williams,  63  Neb.  435, 
88  N.  W.  765. 

Administrator  without  power  to 
redeem  intestate's  land  in  another 
state  from  mortgage  by  setting  off 
waste  committed  by  the  mort- 
gagee after  intestate's  death. — 
Price  V.  Ward,  25  Nev.  213,  46 
L.  R.  A.  463,  58  Pac.  849. 

— Judgment  against  administra- 
tor in  one  state  has  no  binding 
effect  upon  administrator  in  an- 
other state  of  the  same  estate. — • 
Braithwaite  v.  Harvey.  14  Mont. 
208,  43  Am.  St.  Rep.  625,  27  L.  R.  A. 
101,  36  Pac.  38.  See  .Jefferson  v. 
Beall,  117  Ala.  440.  67  Am.  St.  Rep. 
177,  25  So.  44;  Johnston  v.  McKiu- 
non,  129  Ala.  225,  29  So.  696. 

See  full  collection  of  authorities 
in  note  27  L.  R.  A.  101117. 

11  Carlton,  In  re,  7  Cow.  (N.  Y.) 


87 


§78 


CODE  PLEADING  AND   PRACTICE. 


[Pt.  I, 


8.  Property  out  of  state. — ^Where  jurisdiction  of  the 
person  is  axjquired,  state  courts  have  equitable  jurisdic- 
tion in  actions  respecting  real  estate,  even  if  the  property 
is  situated  out  of  the  state. ^-  They  have  jurisdiction  in 
an  action  for  a  breach  of  covenant  to  convey  real  prop- 
erty situated  in  a  foreign  state. ^^  Thus,  in  the  leading 
case  of  Penn  v.  Lord  Baltimore, ^^  specific  performance 
of  a  contract  for  lands  lying  in  America  was  decreed  in 
England.  So,  also,  in  the  case  of  The  Earl  of  Kildare  v. 
Sir  Morrice  Eustace  and  Fitzgerald,^^  it  was  held  that  a 
trust  in  relation'to  lands  lying  in  Ireland  may  be  enforced 
in  England  if  the  trustee  live  in  England.  So  if  the  sub- 
ject of  the  contract  or  trust  be  within  the  jurisdiction, 
but  the  parties  are  not.^*^    But  the  state  courts  have  no 


471;  Fergeson,  In  re,  9  Johns. 
(N.  Y.)  239;  United  States  v. 
Wyngall,  5  Hill  (N.  Y.)  16;  Dabbs, 
In  re,  12  Abb.  Pr.  (N.  Y.)  113,  sub 
nom.  Dobbs,  In  re,  21  How.  Pr.  68. 

Jurisdiction  by  habeas  corpus  on 
commitment  by  federal  court. — • 
See  Husted,  In  re,  1  Johns.  Cas. 
(N.  Y.)  136;  Hopson,  In  re,  40 
Barb.  (N.  Y.)  34;  Barrett,  In  re, 
42  Barb.  (N.  Y.)  479,  25  How.  Pr. 
380. 

12  Vail  V.  .lones,  31  Ind.  467; 
Noble  V.  Grandin,  125  Mich.  383, 
84  N.  W.  465;  Silver  Camp  Min. 
Co.  V.  Dickert,  31  Mont.  488,  3 
Ann.  Cas.  1000,  67  L.  R.  A.  940,  78 
Pac.  967;  Gardner  v.  Ogden,  22 
N.  Y.  327,  78  Am.  Dec.  192;  Will- 
iams V.  Fitzhugh,  37  N.  Y.*444; 
Sloan  V.  Bird,  162  N.  Y.  327,  30 
N.  Y.  Prac.  Rep.  361,  56  N.  E.  752; 
Ward  V.  Arredondo,  1  Hopk.  Ch. 
(X.  Y.)  243,  14  Am.  Dec.  543;  Slat- 
ter  V.  Carroll,  2  Sandf.  Ch.  (N.  Y-) 
573;  De  Klyn  v.  Watkins,  3  Sandf. 
Ch.  (N.  Y.)  182;  Chase  v.  Knicker- 
bocker Phosphate  Co.,  32  App.  Div. 
(N.  Y.)    400,   53   N.  Y.   Supp.   220; 


Mead  v.  Brockner,  82  App.  Div. 
(N.  Y.)  480,  81  N.  Y.  Supp.  594; 
Mussina  v.  Belden,  6  Abb.  Pr. 
(N.  Y.)  165;  House  v.  Lockwood, 
40  Hun  (N.  Y.)  532;  Reading  v. 
Hoggin,  58  Hun  (N.  Y.)  450,  12 
N.  Y.  Supp.  368;  Buel  v.  Balti- 
more &  O.  S.  W.  R.  Co.,  24  Misc. 
(N.  Y.)  646,  53  N.  Y.  Supp.  749; 
Kirdahi  v.  Basha,  36  Misc.  (N.  Y.) 
715,  74  N.  Y.  Supp.  383;  Johnston 
V.  Wadsworth,  24  Ore.  494,  34  Pac. 
13. 

See,  also,  post,  §  108. 

13  Bailey  v.  Rider,  10  N.  Y.  363; 
Newton  v.  Bronson,  13  N.  Y.  587, 
67  Am.  Dec.  89;  Gardner  v.  Ogden, 
22  N.  Y.  327,  78  Am.  Dec.  192; 
Mott  V.  Coddington,  1  Abb.  Pr. 
N.  S.  (N.  Y.)  290;  Fenner  v.  San- 
born, '37  Barb.  (N.  Y.)  610. 

14  Penn  v.  Lord  Baltimore,  1 
Ves.  Sr.  444,  42  Eng.  Repr.  1132,  2 
Lead.  Eq.  Cas.  1809-1832. 

10  Earl  of  Kildare  v.  Sir  Morrice 
Eustice,  1  Vern.  419.  23  Eng.  Repr. 
559. 

ic  Newton  v.  Bronson,  13  N.  Y. 
587,  67  Am.  Dec.  89;   Cleveland  v. 


88 


ell.  VII.]  CALIFORNIA  COURTS.  §  79 

jurisdiction  of  an  action  for  injury  to  real  estate  out  of 
that  state.^^ 

9.  Torts  generally. — State  courts  have  jurisdiction  of 
actions  for  torts  committed  in  a  foreign  state,  where  the 
defendant  is  served  with  process  within  the  state.^^  So, 
also,  for  a  fraudulent  conspiracy  formed  in  another 
state. ^'^ 

10.  United  States  or  United  States  officers.  —  The 
United  States  or  a  state  may  consent  to  be  sued  in  a  state 
court.-^  Or  an  action  may  be  maintained  in  a  state  court 
against  officers  of  the  United  States  government  in  cer- 
tain cases.-^ 

§  79.  California  courts — Constitutional  jurisdiction. 
In  California,  prior  to  the  adoption,  in  1879,  of  the  pres- 
ent constitution,  the  jurisdiction  of  the  several  courts 
was  fixed  by  the  constitution,  which  prescribed  that  "the 
judicial  powers  of  the  state  shall  be  vested  in  a  Supreme 
Court,  in  District  Courts,  in  County  Courts,  in  Probate 
Courts,  and  in  justices  of  the  peace,  and  in  such  record- 
ers' courts  and  other  inferior  courts  as  the  legislature 
may  establish  in  any  incorporated  city  or  town.^  The 
constitution  of  1879  made  radical  changes  in  the  judicial 
system  of  the  state.  Among  other  things,  it  abolished  the 
District  Courts,  County  Courts,  and  Probate  Courts,  as 
'separate  tribunals,  and  vested  the  jurisdiction  formerly 

BurneU,    25    Barb.     (N.    Y.)     532;  20  Michigan,  People  of,  v.  Phoe- 

Wagner  v.  Watts,  2  Cr.  C.  C.  148,  nix    Bank,    17    N.    Y.     Super.     (4 

Fed    Cas.   No.   8874;    Arglasse   v.  Bosw.)  363. 

Muschamp,    1    Vern.    75,    23    Eng.  ^'^  Teal   v.   Felton,   1    N.   Y.    5:>,7. 

Repr.    322;    Toller   v.    Carteret.    2  ^9  Am.   Dec.  352;   Wilson  v.  Mac- 

,r          .«.    00  t:,        ID          Q1C  Kenzie,  7  Hill   (xV.  Y.)    95.  42  Am. 
Vern.  494,  23  Eng.  Repr.  916. 

Dec.  51 ;  Ripley  v.  Gelston,  9.Ionns. 

17  Watts  V.Kinney,  6  HilKN.Y.)  ^^^     ^^     ^^^^^    ^    ^^      ^^^     ,-^  . 

82;  Mott  V.  Coddington,  1  Abb.  Pr.       g^^^^^^    ^^    ^.^     ^^    j^,^,^^     ^  ^.     ^.  , 

N.   S.    (N.  Y.)    290;    Hull  v.   Vree-      .^S;    Hovt    v.    Gelston.    i:<    .lolnis. 
land.  18  Abb.  Pr.  (N.  Y.)  182.  ^^    ^^  ^^^.  ^^^^^^^  ^    ^,.^_^^,,,    ... 

IS  Latourette  V.  Clarke,  45  Barb.  App.  Div.  (N.  Y.)  240,  47  .\'  Y. 
(N.  Y.)327;  reversed,  51  N.  Y.  639.      g„pp    757.    McButt  v.   Murray,   10 

m  Mussina  v.  Belden,  6  Abb.  Pr.      Abb.  Pr.  (N.  Y.)  196. 
(N.  Y.)  165.  1  Cal.  Const.  1849,  art.  VI,  §  1. 

89 


79 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  I, 


exercised  by  them  in  the  Superior  Courts.  The  present 
constitution  provides  "that  the  judicial  power  of  the 
state  shall  be  vested  in  the  Senate  sitting  as  a  court  of 
impeachment,  in  a  Supreme  Court,  District  Courts  of 
Appeal,  Superior  Courts,  justices  of  the  peace,  and  such 
inferior  courts  as  the  legislature  may  establish  in  any 
incorporated  city  or  town,  township,  county,  or  city  and 
county.^  Under  its  former  judicial  system,  the  California 
courts  established  several  propositions  which  are  equally 
applicable  to  the  system  now  in  existence.  Among  such 
propositions  are  that: 

1.  The  legislature  can  not  confer  other  than  judicial 
functions  upon  courts  or  judges;^  and  this  doctrine  has 
been  followed  in  some  of  the  states  having  the  reformed 
system  of  judicature,^  but  denied  in  others.^ 


2  Cal.  Const.  1879,  art.  VI,  §  1,  as 
amended  Oct.  10,  1911,  Henning's 
Gen.  Laws,  2d  ed.,  p.  58. 

3  Burgoyne  v.  San  Francisco 
Board  of  Supervisors,  5  Cal.  9,  21. 

Followed  in  Exline  v.  Smith,  5 
Cal.  112,  113;  People  v.  Applegate, 
5  Cal.  295;  Dickey  v.  Hurlburt.  5 
Cal.  343,  344;  Thompson  v.  Will- 
iams, 6  Cal.  88,  89;  People  v.  Ne- 
vada, Town  of,  6  Cal.  143,  144; 
Tuolumne  County  v.  Stanislaus 
County,  6  Cal.  440,  442;  Phelan  v. 
San  Francisco  County,  6  Cal.  540; 
Hardenburgh  v.  Kidd,  10  Cal.  402, 
403;  Phelan  v.  San  FVancisco 
County,  20  Cal.  39,  42. 

Explained  as  to  scope  of  decision 
in  Hastings  v.  San  Francisco,  City 
and  County  of,  18  Cal.  49,  59. 

Overruled  in  People  v.  Provines, 
34  Cal.  520,  525-548  (obiter). 

4  Griffiths,  Ex  parte,  118  Ind.  83, 
84,  10  Am.  St.  Rep.  107,  108,  3 
L.  R.  A.  398,  20  N.  E.  513;  and 
Griffin  v.  State.  119  Ind.  521,  22 
N.  E.  7    (act  requiring  judges  to 


prepare  syllabi  invalid  as  requir- 
ing an  act  which  is  not  a  judicial 
function) ;  State  ex  rel.  White  v. 
Barker,  116  Iowa  99,  110,  99  Am. 
St.  Rep.  222,  57  L.  R.  A.  244,  252, 
89  N.  W.  204  (power  of  choosing 
manager  of  municipal  water  sup- 
ply system  can  not  be  vested  by 
the  legislature  in  a  court  created 
by  the  constitution) ;  State  ex  rel. 
Young  V.  Brill,  100  Minn.  499,  518,  . 
Ill  N.  W.  294,  639  (act  requiring 
judges  of  district  courts  to  ap- 
point members  of  board  of  control 
held  void  as  not  conferring  a  ju- 
dicial function) ;  Attorney-General, 
In  re,  21  Misc.  (N.  Y.)  108,  47 
N.  Y.  Supp.  20  (act  imposing  non- 
judicial duties  on  supreme  court 
invalid) ;  Searberg,  Town  of,  v. 
Woodford,  Town  of,  76  Vt.  375,  57 
Atl.  962  (it  is  not  a  judicial  fimc- 
tion  to  determine  boundary  be- 
tween towns  by  line  claimed  to 
have  been  established  by  prescrip- 
tion). 

5  Mendenhall  v.  Burton,  42  Kan. 


90 


ch.  VII.] 


MUNICIPAL  AND  ENPERIOR  COURTS. 


§79 


2.  The  municipal  and  inferior  courts  can  only  be  of 
inferior,  limited,  and  special  jurisdiction,  and  can  not  go 
beyond  the  power  conferred  upon  them  by  statute,  nor 
can  they  assume  power  by  implication.^  The  constitu- 
tion not  ha^^.ng  defined  the  jurisdiction  of  the  municipal 
courts  authorized  to  be  established,  it  is  left  to  be  regu- 
lated by  the  legislature  under  its  general  powers.'''  Where 
a  particular  jurisdiction  is  conferred  upon  an  inferior 
court  or  tribunal,  its  decision,  when  acting  within  its 
jurisdiction,  is  final,  unless  provision  is  made  for  an  ap- 
peal from  such  decision.^ 

3.  Statute  creating  neiv  right  and  a  particular  remedy 
for  violation  thereof,  providing  also  that  the  remedy  must 
be  pursued  in  a  particular  court,  no  other  court  has  juris- 
diction.**  In  such  a  case  the  statute  must  be  strictly 
pursued,^® 


570,  574,  22  Pac.  558,  maintaining 
power  of  probate  court,  under  leg- 
islative act,  to  declare  town  incor- 
porated as  a  village.  This  Is  di- 
rectly the  opposite  of  the  holding 
in  People  v.  Nevada,  Town  of,  6 
Cal.  143j  holding  act  conferring 
upon  court  power  to  incorporate 
town  unconstitutional. 

c>  Mej^er  v.  Kalkmann,  6  Cal.  582, 
590;  Kenyon  v.  Welty,  20  Cal.  637, 
640,  81  Am.  Dec.  137;  Courtwright 
v.  Bear  River  &.  Auburn  Water  & 
Min.  Co.,  30  Cal.  573,  579;  Winter 
v.  Fitzpatrick,  35  Cal.  269;  Morley 
V.  Elkins,  37  Cal.  454. 

Process  may  be  sent  out  of 
county. — Hickman  v.  O'Neal,  10 
Cal.  292,  294;  Chipman  v.  Bow- 
man, 14  Cal.  157,  158;  Stratman, 
Ex  parte,  39  Cal.  519;  McCauley  v. 
Fulton,  44  Cal.  360. 

"Municipal    courts"    includes 


mayor's  and  recorder's  courts. — 
Uridias  v.  Morrill,  22  Cal.  473; 
People  v.  Provines,  34  Cal.  520. 

7  Uridias  v.  Morrill,  22  Cal.  473. 

8  Belser  v.  Hoffschneider,  104 
Cal.  455,  461,  38  Pac.  312;  Black 
Hills  Flume  &  Min.  Co.  v.  Grand 
Island  &  W.  C.  R.  Co.,  2  S.  D.  546, 
51  N.  W.  342;  Huron,  City  of,  v. 
Carter,  5  S.  D.  4,  57  N.  W.  947. 
See  People  Ex  rel.  Thomson  v. 
Schenectady  County,  35  Barb. 
(N.  Y.)  408. 

9  Smith  V.  Omnibus  Railroad  Co., 
36  Cal.  281. 

In  Idaho,  a  statute  imposing  a 
penalty  recoverable  before  a  jus- 
tice of  the  peace,  does  not  prevent 
a  suit  therefor  being  brought  in  a 
district  court. — Bisse  v.  Collins,  12 
Idaho  693,  87  Pac.  1007. 

10  Cohen  v.  BaiTett,  5  Cal.  195. 


91 


§  80  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

§  80.  Supreme  Court — Formation  of.  The  Su- 
preme Court  of  California  as  it  exists  under  the  present 
constitution  consists  of  a  chief  justice  and  six  associate 
justices.^  The  court  may  sit  in  department  and  in  bank, 
and  is  always  open  for  the  transaction  of  business.-  There 
are  two  departments,  denominated,  respectively,  depart- 
ment one  and  department  two.  The  chief  justice  is  em- 
powered to  assign  three  of  the  associate  justices  to  each 
department.  Such  assignment  may  be  changed  by  him 
from  time  to  time,  and  the  associate  justices  may  inter- 
change among  themselves  by  agreement.  Each  depart- 
ment has  power  to  hear  and  detennine  causes  and  all 
questions  arising  therein,  subject  to  the  constitutional 
provisions  in  relation  to  the  court  in  bank.^  The  presence 
of  three  justices  is  necessary  to  transact  any  business  in 
either  of  the  departments,  except  such  as  may  be  done  at 
chambers,  and  the  concurrence  of  three  justices  is  neces- 
sary to  pronounce  a  judgment.  The  chief  justice  appor- 
tions the  business  to  the  departments,  and  may,  in  his 
discretion,  order  any  cause  pending  before  the  court  to  be 
heard^  and  decided  by  the  court  in  bank.  The  order  may 
be  made  before  or  after  judgment  pronounced  by  a  de- 
partment; but  where  a  cause  has  been  allotted  to  one  of 
the  departments,  and  a  judgment  pronounced  thereon,  the 
order  must  be  made  within  thirty  days  after  such  judg- 
ment,^ and  concurred  in  bj^  two  of  the  justices,  and  if  so 

1  Prohibition    by   im|J!ication   on  trial,  of  a  cause,  and  the  court  has 

legislature  to  increase  the  number  control  and  jurisdiction  of  a  cause 

of    justices. — People    v.    Wells,    2  for  that  period. — Niles  v.  Edwards, 

Cal.  196,  610.  95  Cal.  41,  30  Pac.  134. 

::  Sundays  and  holidays  included.  o  iVIerely  a  provision  for  consid- 

• — Adam  v.  Dohrmaini,  63  Cal.  417.  eration   and   determination   of  the 

:j  One  supreme  court,  only,  and  cause    after    judgment,    and    does 

the  jurisdiction  which  is  vested  in  not  imply  an  additional  oral  agree- 

it  may  be  exercised  either  in  bank  ment,  the  court  having  discretion 

or    in    department. — Niles    v.    Ed-  to   hear  on  the   record   and   argu- 

wards,  95  Cal.  41,  30  Pac.  134.  ment,  or  to  direct  additional  argu- 

4  "Heard"    signifies    the    consid-  ments. — Niles  v.  Edwards,  95  Cal. 

eration,  as  distinguished  from  the  41,  30  Pac.  134. 

92 


eh.  VII.] 


CALIFORXIA  SUPREME  COURT, 


§80 


made  it  shall  have  the  effect  to  vacate  and  set  aside  the 
judgment.  Any  four  justices  may,  either  before  or  after 
judgment  by  a  department,  order  a  case  to  be  heard  in 
bank.*^  If  the  order  be  not  made  within  the  time  above 
limited,  the  judgment  is  final.  No  judgment  by  a  depart- 
ment becomes  final  until  the  expiration  of  the  period  of 
thirty  days,  unless  approved  by  the  chief  justice,  in  writ- 
ing, with  the  concurrence  of  two  associated  justices.^  The 
chief  justice  may  convene  the  court  in  bank  at  any  time, 
and  is  the  presiding  justice  of  the  court  when  so  convened. 
The  concurrence  of  four  justices^  present  at  the  argu- 
ment*^ is  necessary  to  pronounce  a  judgment  in  bank ;  but 
if  four  justices,  so  present,  do  not  concur  in  a  judgment, 
then  all  the  justices  qualified  to  sit  in  the  cause  shall  hear 
the  argument ;  but  to  render  a  judgment  a  concurrence  of 
four  judges  is  necessary.    In  the  determination  of  causes 


6  "Joint  action  or  concurrence 
of  four  justices  is  the  thing  re- 
quired to  constitute  the  action  of 
the  court;  and,  in  contemplation 
of  law,  this  joint  action  is  taken 
when  four  justices  have,  in  writ- 
ing, declared  their  concurrence  in 
a  particular  order  or  judgment, 
with  intent  to  make  it  an  order  or 
judgment,  and  it  is  immaterial 
whether  their  respective  signa- 
tures are  appended  when  they  are 
together,  or  whether  they  are 
made  separately,  at  wide  intervals 
of  time  and  place,  provided,  al- 
ways, that  at  the  time  such  order 
or  judgment  becomes  effective 
such  four  justices  are  qualified  to 
act  in  the  particular  matter." — 
People  V.  Ruef,  14  Cal.  App.  576, 
624,  114  Pac.  48,  54,  72. 

See,  also,  footnote  8,  this  sec- 
tion. 

By  constitutional  majority  the 
Supreme  Court  may  act  in  all 
cases. — Jessup,  In  re,  81  Cal.  408, 


6    L. 
Pac. 


R.   A. 

742. 


594,    21    Pac.    976,    22 


7  Department  pronouncing  judg- 
ment, the  court  in  bank,  or  the 
justices  of  the  court,  may  proceed 
to  reconsider  the  cause,  and  to 
modify,  correct,  or  vacate  the 
judgment,  and  do  so  of  their  own 
motion. — Niles  v.  Edwards,  95  Cal. 
41,  30  Pac.  134. 

8  Concurrence  of  four  judges 
requisite  to  pronounce  judgment; 
but  their  failure  to  agree  does  not. 
ipso  facto,  work  an  affirmance. — 
Luco  v.  De  Toro,  88  Cal.  2,  6,  11 
L,  R.  A.  543,  25  Pac.  983. 

See,  also,  footnote  6,  this  sec- 
tion. 

9  Oral  agreement  not  heard  by 
one  of  the  judges  participating  in 
the  judgment,  does  not  render 
such  judgment  absolutely  void;  it 
is  an  irregularity  that  may  be 
waived  by  the  parties. — Blanc  v. 
Bowman,  22  Cal.  23. 

93 


§§81,82  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

all  decisions  of  the  court  in  bank  or  in  departments  must 
be  given  in  writing,  and  the  grounds  of  the  decisions  sliall 
be  stated.^"  The  chief  justice  may  sit  in  either  depart- 
ment, and  shall  preside  when  so  sitting,  but  the  justices 
assigned  to  each  department  shall  select  one  of  their  num- 
ber as  presiding  justice.  In  case  of  the  absence  of  the 
chief  justice  from  the  place  at  which  the  court  is  held,  or 
his  inability  to  act,  the  associate  justices  shall  select  one 
of  their  own  number  to  perform  the  duties  and  exercise 
the  powers  of  the  chief  justice  during  such  absence  or 
inability  to  act.^^ 

§81. Election  and  term  of  office  of  jus- 
tices. The  chief  justice  and  the  associate  justices  of  the 
California  Supreme  Court  are  elected  by  the  qualified 
electors  of  the  state  at  large  at  the  general  state  elections, 
at  the  times  and  places  at  which  state  officers  are  elected. 
Their  terms  of  office  are  twelve  years,  from  and  after  the 
first  Monday  after  the  first  day  of  January  next  succeed- 
ing their  election.  Of  the  associate  justices  two  of  them 
go  out  of  office  every  four  years.* 

<§,  82. Vacancies  :  disqualification  :  in- 
ability TO  ACT.  In  case  that  a  vacancy^  occurs  in  the  office 
of  a  justice,  the  governor  shall  appoint  a  person  to  bold 
the  office  until  the  election  and  qualification  of  a  justice 
to  fill  the  vacqjicy,  which  election  shall  take  place  at  the 

10  Reason  for  decision  can  not  ing  of  the  constitution. — People  v. 
be  required  by  legislature  of  Su-      Wells,  2  Cal.  198,  610. 

preme  Court  justices. — Houston  v.  Functions  of  justice  cease  when 

Williams,  13  Cal.  24,  73  Am.  Dec.  he    passes    beyond    the    boundary- 

565.  line  of  the  state,  and  do  not  revive 

11  Cal.  Const.  1879,  art.  VI,  §  2,  until  he  re-crosses  the  boundary- 
Henning's  Gen.  Laws,  2d  ed.,  p.  58.  line  of  the  state. — People  v.  Reuf, 

1  Cal.   Const.   1879,   art   IV,   §  4,  14  Cal.  App.  626,  114  Pac.  51. 
as    amended    November    8,    1904,  Sickness  as  "vacancy"  in  office 

Henning's  Gen.  Laws,  2d  ed".,  p.  59.  authorizes   performance   of  duties 

1  Absence  from  state  of  a  justice  by  another. — See  note  25  L.  R.  A. 

of   the    Supreme    Court    does    not  613. 
create  a  vacancy  within  the  mean- 

9-1 


Ch.  VII.]  JURISDICTION  OF  SUPREME  COURT.  §  83 

next  succeeding  general  election ;  and  the  justice  so  elected 
shall  hold  the  office  for  the  remainder  of  the  unexpired 
term.2  "\\rhere  any  justice  of  the  Supreme  Court  is  for 
any  reason  disqualified  or  unable  to  act  in  a  cause  or 
causes  pending  before  that  court,  the  remaining  justices 
may  select  one  of  the  justices  of  a  District  Courts  of 
Appeal  to  act  pro  tem  in  the  place  of  the  justice  so  dis- 
qualified or  unable  to  act.^ 

§  83. Jurisdiction  of — Nature  and  extent. 

The  Supreme  Court  of  California,  being  created  by  the 
state  constitution,  and  its  power  being  therein  defined 
and  set  forth,  has  such  powers  and  jurisdiction,  only,  as 
are  designated  by  the  constitution;^  it  can  not  exercise 
any  functions  not  therein  delegated;-  and  its  jurisdiction 
and  powers  can  neither  be  enlarged  nor  abridged  by  the 
legislature.^  An  affirmative  enumeration  and  grant  of 
power  and  jurisdiction  to  the  Supreme  Court  by  the  con- 
stitution, impliedly  negatives  all  others.*  The  state  con- 
stitution has  not  clothed  the  Supreme  Court  with  the  same 
powers  and  jurisdiction  possessed  by  Courts  of  Chancery 
and  the  Court  of  Kings'  Bench  in  England.^  Under  the 
constitution  of  1849,  as  originally  enacted,  the  Supreme 
Court  was  a  court  of  appellate  jurisdiction,  only;^  but 

2Cal.  Const.   1879,  art.  VI,   §   3,  gerald  v.  Urton,  4  Cal.  235;  Wilson 

Henning's  Gen.  Laws,  2d  ed.,  p.  59.  v.  Roach,  4  Cal.  362;  Burgoyne  v. 

3  Id.,  p.  61.  San  Francisco  Supervisors,  5  Cal. 

1  People  ex  rel.  Attorney-Gen-  9;  Zander  v.  Coe,  5  Cal.  230; 
eral,  1  Cal.  85;  Jessup,  In  re,  81  People  v.  Applegate,  5  Cal.  295; 
Cal.  408,  6  L.  R.  A.  594,  21  Pac.  Thompson  v.  Williams,  6  Cal.  88; 
796,  22  Pac.  742.  Haight  v.  Gay,  8  Cal.  297,  68  Am. 

2  Luther  v.  Master  Ship  Apollo,  Dec.  323. 

1  Cal.  15;  Von  Schmidt  v.  Hunting-  As  to  power  of  legislature  to  im- 

ton,  1  Cal.  66;   Warner  v.  Hall,  1  pose   non-judicial  functions,  see  7 

Cal.  90;  Warner  v.  Kellt,  1  Cal.  92;  R.  C.  L.,  p.  982,  §  10. 

White  V.  Lihjthall,  1  Cal.  348.  4  Burgoyne  v.  San  FVancisco  Su- 

3  Jessup,   In   re,    81    Cal.    408,   6  pervisors,  5  Cal.  9. 

L.  R.  A.  594,  21  Pac.  976,  22  Pac.  5  People    ex    rel.    Attorney-Gen- 

742.    See  Hicks  V.  Bell,  3  Cal.  219;       eral,  1  Cal.  85. 
People  V.  Peralta,  3  Cal.  379;  Caul-  6  People    ex    rel.    Attorney-Gen- 

field  V.  Hudson,  3  Cal,  389;   Fitz-      eral,  1  Cal.  85;  People  v.  Gillespie, 

95 


§84 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


that  limitation  was  changed  by  the  amendment  of  1862  to 
article  VI,  §  4  of  the  constitution.'^  Under  the  constitu- 
tion of  1879,  the  court  still  has  the  enlarged  powers  and 
jurisdiction. 


§84. 


Appellate  and  okiginal  jurisdic- 


tion. The  jurisdiction  of  the  Supreme  Court  of  California 
is  original^  to  some  extent,  but  is  mainly  appellate.-  The 
present  constitution  of  California^  gives  to  the  Supreme 


1  Cal.  343;  Caulfield  v.  Hudson,  3 
Cal.  390;  Milliken  v.  Huber,  21  Cal. 
169. 

7  See  Desty's  California  Consti- 
tutions (parallel),  pp.  98,  100. 

1  As  to  original  jurisdiction  of 
the  Supreme  Court,  see  footnotes 
14  et  seq.,  this  section. 

"Original  jurisdiction"  is  a  gen- 
eral term  of  limitation,  contradis- 
tinguished from  the  term  "appel- 
late jurisdiction,"  which  latter  de- 
fines the  jurisdiction  of  the  su- 
preme court. — Reed  v.  McCormick, 
4  Cal.  342,  343  (discussing  Const., 
art.  VI,  §  6,  in  connection  with  jur- 
isdiction of  district  courts) ;  Peo- 
ple ex  rel.  Dickinson  v.  Board  of 
Trade  of  Chicago,  193  111.  577,  62 
N.  B.  196. 

"Original  jurisdiction"  means 
jurisdiction  in  the  fir»t  instance. — 
Castner  v.  Chandler,  2  Minn.  86, 
88. 

2  "Appellate  jurisdiction"  means 
the  power  vested  in  a  superior 
court  to  review  and  revise  the 
final  judgments  and  decrees  of  an 
inferior  court. — Jessup,  In  re,  81 
Cal.  408,  6  L.  R.  A.  594,  21  Pac.  976, 
22  Pac.  742;  State  v.  Baker,  19 
Fla.  19,  26;  McVay,  Estate  of,  14 
Idaho  68,  93  Pac.  32;  State  ex  rel. 
Williams  v.  Anthony,  65  Mo.  App. 
543,    552;     Dodds    v.    Duncan,    80 


Tenn.  (12  Lea)  731,  734;  Browns- 
ville, City  of,  V.  Basse,  43  Tex. 
440,  449;  Hubbell  v.  McCourt,  44 
Wis.  584,  587. 

Legislature  can  not  impair  or 
take  away  the  appellate  jurisdic- 
tion of  the  Supreme  Court.— Haight 
V.  Gay,  8  Cal.  297,  68  Am.  Dec.  323; 
Jessup,  In  re,  81  Cal.  408,  6  L.  R.  A. 
594,  21  Pac.  976,  22  Pac.  742. 

See,  also,  authorities  cited,  ante, 
§  83,  footnote  3. 

Procedure  on  exercise  of  appel- 
late jurisdiction  by  the  Supreme 
Court,  and  the  mode  in  which  ap- 
peals may  be  taken  can  be  pre- 
scribed by  the  legislature. — Haight 
V.  Gay,  8  Cal.  297,  68  An-..  Dec.  323; 
Harker,  Ex  parte,  49  Cal.  465. 

On  failure  of  legislature  to  pre- 
scribe method  of  taking  appeal, 
Supreme  Court  has  inherent  power 
to  establish  any  appropriate  sys- 
tem of  procedure. — People  v.  Jor- 
dan, 65  Cal.  644,  4  Pac.  683. 

Writ  of  error  may  be  used  to 
bring  up  a  case  and  secure  a  re- 
view of  the  same  by  the  Supreme 
Court  where  the  legislature  has 
failed  to  provide  a  method  for  tak- 
ing an  appeal. — Adams  v.  Town,  3 
Cal.  247;  Thistleton,  Ex  parte,  52 
Cal.  220,  224. 

3  Cal.  Const.  1879,  art.  VI,  §  4,  as 
amended  November  8,  1904,  Hen- 
ning's  Gen.  Laws,  2d  ed.,  p.  59. 


96 


ch.  VIL] 


APPELLATE  JURISDICTION. 


§84 


Court  appellate  jurisdiction,  on  appeal  from  the  Superior 
Courts,  in  the  following  instances:  (1)  In  all  cases  in 
equity,''  except  such  as  arise  in  Justices'  Courts;  (2)  in 
all  cases  in  law  which  involve  the  title  to,  or  the  possession 
of,  real  estate;"^  (3)  in  all  cases  involving  the  legality  of 
any  tax,<^  impost,  assessment,  toll,  or  municipal  fine;^  (4) 


4  Mortgage  foreclosures  appeals 
in  exclusively  within  jurisdiction 
of  Supreme  Court  (Aetna  Indem- 
nity Co.  V.  Altadena  Min.  &  Invest. 
Co.,  11  Cal.  App.  2G,  104  Pac.  470) 
and  where  transcript  and  briefs  on 
appeal  are  filed  in  a  District  Court 
of  Appeal,  that  court  must  transfer 
the  cause  to  the  Supreme  Court. — 
Id. 

Injunction  against  a  mining  com- 
pany to  prevent  depositing  of  tail- 
ings in  a  stream  to  the  special 
injury  of  the  county,  is  an  equi- 
table action  over  which  the  Su- 
l)reme  Court  has  exclusive  juris- 
diction.— Yuba  County  v.  North 
American  Consol.  Gold  Min.  Co., 
12  Cal.  App.  121,  107  Pac.  139. 

Injunction  restraining  board  of 
supervisors  from  calling  a  special 
election  for  the  recall  of  one  of 
their  members  and  the  election  of 
his  successor,  jurisdiction  of  an 
appeal  is  in  the  Supreme  Court, 
and  a  District  Court  of  Appeal  is 
without  power  to  hear  a  motion  to 
dismiss  the  injunction. — Laam  v. 
McLaren,  28  Cal.  App.  68,  632,  151 
Pac.  290,  153  Pac.  985. 

5  Question  of  title  being  in- 
volved, damages  to  real  property 
claimed  in  a  sum  less  than  two 
thousand  dollars.  Supreme  Court 
has  jurisdiction  of  an  appeal. — See 
Doherty  v.  Thayer,  31  Cal.  140  (de- 
cided under  the  three  hundred  dol- 
lar limitation). 

I  Code  PI.  and  Pr.— 7 


Damage  for  killing  stock  by  rail- 
road, under  §  485  Cal.  Civ.  Code, 
imposing  liability  to  adjoining  land 
owners  for  killing  stock,  where  the 
complaint  avers  ownership  of  ad- 
joining land,  title  to  land  is  in- 
volved in  the  action  so  as  to  give 
the  Supreme  Court  jurisdiction  on 
appeal.— Boyd  v.  Southern  Cal.  R. 
Co.,  126  Cal.  571,  58  Pac.  104G. 

Statement  of  counsel  that  cause 
Involved  title  to  real  estate,  made 
for  the  purpose  of  having  the  evi- 
dence taken  in  writing,  can  not  be 
accepted  as  a  substitute  for  mat- 
ter of  record  to  show  that  title 
was  involved. — Raisch  v.  Sausalito 
Land  &  Ferry  Co.,  131  Cal.  215, 
63  Pac.  346. 

6  Validity  of  tax  called  in  ques- 
tion, appellate  jurisdiction  of  Su- 
preme Court  does  not  include  the 
reviewing  of  a  case  where  the 
question  is,  not  the  validity  of  the 
tax,  but  whether  the  court  ap- 
pealed from  had  the  power  to  im- 
pose a  penalty  for  not  paying  the 
tax. — De  Long  v.  Haines,  1  Cal. 
Unrep.  120. 

7  "Municipal  fine"  does  not  in- 
clude a  fine  imposed  for  the  viola- 
tion of  a  municipal  ordinance,  and 
on  affirmance  of  the  police  court 
by  the  superior  court,  the  Supreme 
Court  has  no  jurisdiction  on  ap- 
peal under  this  provision.— See 
People  V.  Pacific  Gas  &  Elec.  Co., 
168  Cal.  496,  Ann.  Cas.  1917A,  328, 
143  Pac.  727. 

97 


§84 


CODE  PLEADING  AND  PRACTICE. 


[Pt.I, 


in  all  cases  in  which  the  demand,  exclusive  of  interest, 
amounts  to  two  thousand  dollars ;  (5)  in  all  cases  in  which 
the  value  of  the  property  in  controversy  amounts  to  two 
thousand  dollars;^  (6)  in  all  such  probate  matters  as  is 
provided  by  law;^  (7)  on  all  questions  of  law  only,^*'  in  all 
criminal  cases  in  which  a  judgment  of  death  has  been 
rendered;  (8)  in  all  matters  and  proceedings  pending  in 
a  District  Court  of  Appeal,  which  shall  be  ordered  by  the 
Supreme  Court  to  be  transferred  to  itself  for  hearing  and 
decision,  as  in  the  constitution  provided. ^^ 

Before  the  amendment  of  November  8, 1904,  to  the 

constitution,  the  amount  involved  in  the  controversy,  or 
the  value  of  the  property  in  dispute,  which  gave  the 
Supreme  Court  jurisdiction  of  an  appeal  was  three  hun- 
dred dollars.  By  that  amendment  all  appeals  in  cases  in 
which  the  demand,  or  the  value  of  the  property,  is  three 
hundred  dollars  and  imder  two  thousand  dollars,  is  given 
to  the  District  Courts  of  xlppeal.^^    The  Supreme  Court, 


s  Damages  in  sum  of  three  thou- 
sand dollars  for  alleged  conversion 
of  personal  property  claimed,  trial 
court  finding  that  the  property  in- 
volved was  worth  seven  hundred 
dollars,  only,  the  Supreme  Court, 
and  not  a  District  Court  of  Appeal, 
has  jurisdiction  on  appeal. — Will- 
iamson V.  Monr%e,  28  Cal.  App. 
367,  152  Pac.  567. 

9  Probate  appeal  is  regulated  by 
the  Code  of  Civil  Procedure. — See 
Kerr's  Cyc.  Cal.  Code  of  Civ.  Proc, 
§963,  par.  3;  2  Church's  Probate 
Law  and  Practice,  p.  1774. 

Non-appealable  orders  in  pro- 
bate, as  to  what  are,  see  Hath- 
away, Estate  of.  111  Cal.  270,  43 
Pac.  754. 

10  Can  not  set  aside  verdict 
where  evidence  conflicting. — Peo- 
ple v.  Bowers,  2  Cal.  Unrep.  878, 
18  Pac.  660. 


Accusation  against  district  attor- 
ney, under  §  772  California  Penal 
Code,  is  not  within  the  appellate 
jurisdiction  of  the  Supreme  Court. 
—Wheeler  v.  Donnell,  110  Cal.  155, 
657,  43  Pac.  1;  Guttery  v.  Wishon 
(Cal.),  43  Pac.  2;  Coffey  v.  Super- 
ior Court,  2  Cal.  App.  456,  83  Pac. 
581. 

Removal  for  malfeasance  in  of- 
fice, proceedings  for  are  civil  in 
nature. — Skeen  v.  Craig,  31  Utah 
28,  86  Pac.  489. 

iiAppellate  jurisdiction  not 
given  to  the  Supreme  Court  by 
this  provision  in  those  matters  in 
which  appellate  jurisdiction  is  not 
given  to  that  court  in  some  other 
provision  of  the  constitution. — 
Zany,  Ex  parte,  164  Cal.  724,  130 
Pac.  710. 

12  Cal.  Const.  1879,  art.  VI,  §  4, 
as  amended  November  8,  1904, 
Henning's  Gen.  Laws.  2d  ed.,  p.  60. 


98 


ch.  VII.] 


ORIGINAL.   JURISDICTION. 


§84 


before  that  amendment,  had  appellate  jurisdiction  in 
cases  of  forcible  entry  and  detainer,  and  in  insolvency 
proceedings.^^  In  criminal  cases  the  Supreme  Court 
never  seems  to  have  had  jurisdiction  on  appeal  except  on 
matters  of  law,  and  in  felony  cases  only.^^ 

Jurisdiction  for  purposes  of  particular  appeal,  on 

the  part  of  the  Supreme  Court,  or  of  the  District  Courts 
of  Appeal,  for  that  matter,  is  not  retroactive,  but  remains 
as  it  was  at  the  time  that  the  appeal  was  taken. ^^ 

Original  jurisdiction  of  the  Supreme  Court  includes 
the  power  to  issue  writs  of  mandamus,^*^  certiorari,  pro- 


13  F^sk  V.  His  Creditors,  12  Cal. 
281;  People  ex  rel.  Sturgis  v.  Shep- 
ard,  28  Cal.  115,  117;  Ramazzina, 
Matter  of,  110  Cal.  488,  42  Pac.  970. 

Motion  to  set  aside  decree  of 
final  discharge  in  insolvency,  dis- 
position of  rests  largely  in  discre- 
tion of  trial  judge,  and  appeal  will 
not  lie  except  for  an  abuse  of  dis- 
cretion.— Longnecker  v.  His  Cred- 
itors, 2  Cal.  Unrep.  852,  17  Pac. 
220. 

14  Felony  cases  only,  prosecuted 
by  indictment  or  information  in  a 
court  of  record. — People  v.  Apple- 
gate,  5  Cal.  295;  People  v.  Shear, 
7  Cal.  140;  People  v,  Vick,  7  Cal. 
166;  People  v.  Fowler,  9  Cal.  86; 
People  V.  Cornell,  16  Cal.  187;  Peo 
pie  V.  Ware,  20  Cal.  117;  People  v. 
Burney,  29  Cal.  459;  People  v. 
Johnson,  30  Cal.  101;  People  v. 
Jones,  31  Cal.  576;  People  v.  Ap- 
gar,  35  Cal.  390;  Wheeler  v.  Don- 
nell,  110  Cal.  655,  43  Pac.  1. 

Appeals  In  criminal  cases  are 
regulated  by  Kerr's  Cyc.  Cal.  Pen. 
Code,  §§  1235  et  seq. 

Contempt  proceedings,  though 
criminal  in  their  nature,  are  not 
prosecuted  by  indictment  or  infor- 


mation, and  a  conviction  of  con- 
tempt and  the  imposition  of  a  fine 
in  excess  of  three  hundred  dollars, 
does  not  confer  on  the  Supreme 
Court  appellate  jurisdiction  over 
the  case. — Tyler  v.  Connelly,  65 
Cal.  28,  2  Pac.  214;  People  v.  Kuhl- 
man,  118  Cal.  141,  50  Pac.  382;  Gale 
V.  Tuolumne  County  Water  Co., 
169  Cal.  46,  145  Pac.  532. 

Superior  court  without  jurisdic- 
tion to  render  the  judgment.  Su- 
preme Court  has  jurisdiction  on 
appeal  to  revise,  modify,  etc. — 
Smith  V.  Westfield,  88  Cal.  374,  26 
Pac.  211. 

15  De  Long  v.  Haines,  1  Cal. 
Unrep.  120. 

le  In  mandamus  Supreme  Court 
has  original  jurisdiction;  and  the 
fact  that  the  same  question  is 
raised  in  an  appeal  then  pending 
in  another  case  in  that  court  has 
no  effect  upon  that  jurisdiction. — 
Scott  V.  Boyle,  164  Cal.  321,  128 
Pac.  941. 

Mandamus  of  clerk  to  enter  de- 
fault judgment,  jurisdiction  re- 
sides in  District  Courts  of  Appeal, 
not  in  the  Supreme  Court.— David- 
son, Matter  of,  167  Cal.  727,  141 
Pac.  216. 


99 


§84 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I. 


hibi tion/'^  habeas  corpus,  and  all  other  writs  necessary  or 
proper  to  the  complete  exercise  of  its  appellate  jurisdic- 
tion.^^ Each  of  the  justices  of  the  Supreme  Court  has 
power  to  issue  writs  of  habeas  corpus,  on  petition  of  or  on 
behalf  of  any  person  held  in  actual  custody,  and  may 
make  such  writ  returnable  before  himself,  or  the  Supreme 
Court,  or  before  any  Superior  Court  in  the  state  or  before 
any  judge  thereof.^^ 

Salary  of  justices  of  the  District  Courts  of  Appeal 

being  the  question  involved,  the  Supreme  Court  is  the 


IT  Writ  of  prohibition  can  not  be 
used  to  exercise  appellate  power 
of  Supreme  Court,  without  an  ap- 
peal, and  in  a  case  to  which  its 
appellate  jurisdiction  does  not  ex- 
tend.— Powelson  v.  Lockwood,  82 
Cal.  613,  28  Pac.  143;  Havermeyer 
V.  Superior  Court,  84  Cal.  327,  398, 
18  Am.  St.  Rep.  192,  10  L.  R.  A. 
627,  24  Pac.  121.  See  Wolcott  v. 
Wells,  21  Nev.  47,  52,  37  Am.  St. 
Rep.  481,  9  L.  R.  A.  59,  24  Pac. 
367;  State  ex  rel.  Reed  v.  Jones,  2 
Wash.  662,  666,  26  Am.  St.  Rep. 
900,  27  Pac.  452. 

18  Writs  in  aid  of  appellate  jur- 
isdiction may  be  issued  by  the  Su- 
preme Court  under  its  original 
jurisdiction, — such  as  certiorari, 
habeas  corpus,-  mandamus,  and 
prohibition. — People  ex  rel.  Attor- 
ney-General, 1  Cal.  85,  87;  Warner 
V.  Hall,  1  Cal.  90;  Warner  v.  Kelly, 
1  Cal.  91;  People  v.  Turner,  1  Cal. 
143,  52  Am.  Dec.  295;  White  v. 
Lighthall,  1  Cal.  347;  Adams  v. 
Toen,  3  Cal.  247;  Caulfield  v.  Hud- 
son, 3  Cal.  389;  Reed  v.  McCor- 
mick,  4  Cal.  342;  Parsons  v. 
Tuolumne  County  Water  Co.,  5 
Cal.  43,  63  Am.  Dec.  76;  Townsend 
V.  Brooks,  5  Cal.  52;  Zander  v. 
Coe,  5  Cal.  230;    People  v.  Apple- 


gate,  5  Cal.  295;  People  v.  Fowler. 
9  Cal.  86;  Purcell  v.  McKune,  14 
Cal.  230;  Cowell  v.  Buckelew,  14 
Cal.  640,  642;  Miliken  v.  Huber,  21 
Cal.  169;  People  ex  rel.  Flagley  v. 
Hubbard,  22  Cal.  34,  38;  Tyler  v. 
Houghton,  25  Cal.  26,  28;  Miller  v. 
Sacramento  County,  25  Cal.  93,  95; 
Perry  v.  Ames,  26  Cal.  373,  383; 
People  ex  rel.  Carpentier  v. 
Loucks,  28  Cal.  68,  71;  People  v. 
Weston,  28  Cal.  639;  Courtwright 
V.  Bear  River  &  Auburn  Water  & 
Min.  Co.,  30  Cal.  573,  585;  Lewis 
V.  Barclay,  32  Cal.  213;  Hyatt  v. 
Allen,  54  Cal.  353,  355;  People  ex 
rel.  Kocourek  v.  Chicago,  City  of, 
193  111.  507,  58  L.  R.  A.  833,  62 
N.  E.  179;  Chumasere  v.  Potts,  2 
Mont.  242,  292;  State  ex  rel.  Curtis 
V.  McCullough,  3  Nev.  202,  216. 

Original  jurisdiction  in  manda- 
mus, as  to,  see  note  58  L.  R.  A. 
833-869. 

District  court  can  not,  by  maij- 
damus,  compel  superior  judge  to 
sign  bill  of  exceptions;  it  can  be 
issued  in  aid  of  appeal  only.^ — 
Stewart  v.  Torrance,  9  Cal.  App. 
211,  98  Pac.  397. 

19  Cal.  Const.  1879,  art.  VI,  §,4, 
as  amended  November  8,  1904, 
Hennings  Gen.  Laws,  2d  ed.,  p.  59. 


100 


ch.  VII.] 


JURISDICnONAL  AMOUNT. 


§85 


only  tribunal  empowered  to  entertain  the  cause  and  deter- 
mine the  amount  of  salary.-*^ 

Disbarment  proceediugs  were  within  tlie  ori<j;iTial 

jurisdiction  of  tlie  Supreme  Court  before  the  amendment 
to  the  constitution  of  November  8, 1904  ;-^  but  it  is  thought 
that  jurisdiction  is  now  in  the  District  Courts  of  Appeal, 
and  the  Supreme  Court  has  appellate  jurisdiction  only, 
in  such  a  case. 


§85. 


Amount  in  controversy.    The  Su- 


preme Court  of  California  has  appellate  jurisdiction  in 
all  action  in  which  the  demand,^  exclusive  of  interest,-  or 
the  value  of  the  property  in  controversy,-"'  amounts  to  two 
thousand  dollars."*  The  amount  sued  for,  and  the  value 
of  the  property  in  controversy,  is  thus  the  test  of  juris- 


20  Harrison  v.  Colgan,  7  Cal. 
Unrep.  217,  81  Pac.  1010. 

21  Ashley,  In  re,  146  Cal.  600, 
80  Pac.  1030. 

1  "Amount  sued  for"  is  the  sum 
demanded,  and  is  synonymous 
with  the  phrase  "amount  in  con- 
troversy," under  constitutional 
and  statutory  provisions  regulat- 
ing jurisdiction,  whether  in  the 
first  instance  or  appellate;  in  ap- 
pellate jurisdiction  it  means  the 
entire  amount  as  finally  claimed, 
in  the  appellate  court,  and  not  the 
amount  in  controversy  in  the  trial 
court. — See,  among  many  other 
cases,  Boyt  v.  Mitchell,  4  Ind.  Ter. 
47,  64  S.  W.  610;  .Johnson  v.  Ran- 
dolph County,  140  Ind.  152,  39  N.  E. 
311;  Barber  v.  Kennedy,  18  Minn. 
216,  226;  Folts  v.  State,  118  N.  Y. 
406,  23  N.  E.  567;  Gulf,  C.  &  S.  F. 
R.  Co.  v.  Cunnigan,  95  Tex.  439, 
67  S.  W.  888;  Fink  v.  Denny,  75 
Va.  663,  666;  Bleecker  v.  Satsop 
R.  Co.,  3  Wash.  77,  27  Pac.  1073. 

See  2  R.  C.  L.,  p.  35,  §  14. 


Under  Federal  Act  1789,  ch.  20, 
§§11,  20,  "amount  in  controversy" 
construed  to  mean  amount  named 
in  complaint  or  declaration.  — 
Green  v.  Liter,  12  U.  S.  (8  Cr.) 
229,  242,  3  L.  Ed.  545,  550. 

2  0rth  V.  Clutz's  Adm'r,  57  Ky. 
(18  B.  Mon.)  223,  225  (interest  due 
on  debt  at  time  of  action,  in- 
cluded) ;  Conger  v.  Nesbitt,  30 
Minn.  436,  15  N.  W.  875  (interest 
accruing  to  time  of  verdict,  in- 
cluded); Smith  V.  Smith,  15  Vt. 
620;  Udall  v.  The  Steamship  Ohio, 
58  U.  S.  (17  How.)  17,  15  L.  Ed.  42 
(amount  must  appear  on  face  of 
pleading  by  which  claim  is  named: 
no  computation  of  interest  allow- 
able). 

See  full  discussion  and  authori- 
ties collected,  2  R.  C.  L.,  p.  38,  §  19. 

3  See  footnote  1,  this  section. 
Williamson   v.   Monroe,    28    Cal. 

App.  367,  152  Pac.  567. 

See,  also,  ante,  §  83,  footnote  7. 

4  Cal.  Const.  1879,  art.  VI,  §  4,  as 
amended  November  8,  1904,  Hen- 
ning's  Gen.  Laws,  2d  ed.,  p.  59. 


101 


§  85  CODE   PLEADING   AND   PRACTICE.  [I^t.  I, 

diction.^  The  phrase  ** property  in  controversy,"  as  thus 
used,  means  the  subject  of  litigation ;  the  matter  for  which 
suit  is  brought.^  If  an  appeal  is  taken  by  a  plaintiff  from 
a  judgment  in  his  favor,  then  the  amount  in  dispute  is  the 
difference  between  the  amount  of  the  judgment  and  the 
sum  claimed  in  the  complaints  Where  the  plaintiff  is 
the  appellant  from  a  judgment  in  favor  of  the  defendant, 
the  jurisdiction  of  the  Supreme  Court  is  determined  by  the 
amount  claimed  in  the  complaint.^  If  the  appeal  is  taken 
by  the  defendant  from  a  judgment  in  his  favor,  where  he 
had  set  up  a  counter-claim,  the  amount  in  dispute  is  the 
difference  between  the  amount  of  the  judgment  rendered 
in  his  favor,  exclusive  of  costs,^  and  the  sum  claimed  in 
his  counter-claim.  The  interest  due  forms  no  part  of  the 
amount  in  dispute  ;^^  and  the  costs  form  no  part  thereof, 
for  the  purpose  of  gi\'ing  appellate  jurisdiction.^^ 

In  a  case  where  the  plaintiff  had  judgment  against  the 
defendant  for  the  sum  of  six  hundred  dollars,  and  the 

5  Maxfield    v.    Johnson,    30    Cal.  Sldllman  v.  Lachman,  23  Cal.  198, 

545;   Solomon  v.  Rees,  34  Cal.  28,  83  Am.  Dec.  96. 

34;  Dashiell  v.  Slingeiiand,  60  Cal.  s  Skillman  v.  Lachman,  23  Cal. 

654.  198,   83   Am.   Dec.   96;    Henigan   v. 

Ad  damnum  clause,  or  the  sum  Ervin,   110    Cal.    37,   42   Pac.    457; 

demanded  in  the  complaint,  is  the  McAulay  v.  Tahoe  Ice  Co.,  3  Cal. 

sole  test  of  appellate  jurisdiction.  App.  642,  86  Pac.  912. 

— Solomon   v,.   Reese,   34   Cal.   28,  9  Costs  are  not  included  In  the 

34;  Dashiell  v.  Slingerland,  60  Cal.  matter  in  dispute  and  can  not  be 

653;    Bailey,  V.  Sloan,  65  Cal.  387,  '^dded  to  confer  appellate  jurisdic- 

4  Pac.  349;   Lord  v.  Goldberg,  81  tion. — Dumphy  v.  Guindon,  13  Cal. 

Cal.  596,  599,  15  Am.  St.  Rep.  82,  28;  Zabriskie  v.  Torry,  20  Cal.  174; 

22    Pac.    1126;    Henigan  v.   Ervin,  Bolton    v.    Landers,    27    Cal.    107; 

110  Cal.  37,  40,  42  Pac.  457.     See  Henigan  v.  Ervin,  110  Cal.  37,  40, 

Ruble  Canyon  Land  &  Water  Co.  v.  42  Pac.  457. 

Everett,  154  Cal.  29,  31,  69  Pac.  811.  See,  also,  footnote  11,  this  sec- 

0  Dumphey  v.   Guinden,   13   Cal.  tion. 

28;    Gallispie   v.    Benson,    18    Cal.  lo  As  to  interest,  see  authorities 

409;   Votan  v.  Reese,  20  Cal.  91;  footnote  2,  this  section. 

Zabriskie  v.  Torrey,  20  Cal.  174;  ii  Dumphy  v.   Guindon,   13   Cal. 

Meeker  V.  Harris,  23  Cal.  285,  286;  28;    Votan   v.   Reese,    20   Cal.    89; 

Bolton  V.  Landers,  27  Cal.  107.  Zabriskie  v.  Torrey,   20  Cal.   173; 

7  Votan    V.    Reese,    20    Cal.    89;  Maxfield  v.  Johnson,  30  Cal.  545. 

102 


ell.  VII.]  DISTRICT   COURTS  OF   APPEAL.  §§  86,  87 

defendant  had  judgment,  in  the  same  court,  in  another 
action,  for  one  hundred  and  ten  dollars,  a  motion  by 
plaintiff  to  have  the  court  set  off  the  defendant's  judg- 
ment against  the  judgment  recovered  by  the  plaintiff 
being  denied  by  the  trial  court,  the  plaintiff  appealed. 
The  Supreme  Court  held  that  it  had  no  jurisdiction  of 
the  appeal,  as  the  judgment  sought  to  be  set  off  was  less 
than  three  hundred  dollars^-— the  then  amount  necessary 
to  confer  jurisdiction.  And  where  an  order  was  made 
after  final  judgment,  refusing  to  strike  out  plaintiff's  cost 
bill,  which  amounted  to  less  than  three  hundred  dollars, 
on  appeal  it  was  held  that  the  Supreme  Court  had  no 
jurisdiction.^^ 

,^  86, Rules   of   procedure.      The    Supreme 

Court  is  required  by  the  constitution  to  make  and  adopt 
rules  not  inconsistent  with  law  for  the  government  of  the 
Supreme  Court  and  the  District  Courts  of  Appeal  and  of 
the  officers  thereof  and  for  regulating  the  practice  in  said 
courts.^ 

<^  87.    District    Courts    of    Appeai. — Nature    of 

COURTS.  The  amendment  to  the  state  constitution,  adopted 
November  8, 1904,^  created  the  District  Courts  of  Appeal. 
In  their  nature  these  courts  are  intermediate  courts  of 
appeal,  designed  to  hghten  the  burden  of  the  Supreme 
Court  by  taking  final  charge  of  many  of  the  cases  there- 
tofore going  direct  to  the  Supreme  Court.  Like  the 
Supreme  Court,  these  courts  are  of  both  original  and  ap- 
pellate jurisdiction.  In  the  exercise  of  their  jurisdiction, 
they  are  governed  by  the  same  rules  and  procedure  as  is 
the  Supreme  Court.  These  courts  are  under  the  super- 
vision of  the  Supreme   Court,   or  of  the  chief  justice 

i2Crandall  v.  Blen,  15  Cal.  407.      amended  November  8,  1904.  Heii- 

„,  ^        X      r  /-t  1       nings  Gen.  Laws,  2d  ed.,  p.  61. 

isErtle  V.  Placer  County,  5  Cal.  ,  ^  ,   ^^       *   ictq   „  f  t^t   r  ^   oo 

1  Cal.  Const.  1879,  art.  VI,  §  4,  as 

Unrep.  302.  44  Pac.  229.  amended  November  8,  1904,  Hen- 

1  Cal.  Const.  1879,  art.  VI,  §  4,  as      nings  Gen.  Laws,  2d  ed.,  p.  60. 

103 


§  88  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

thereof,-  and  the  Supreme  Court,  by  orders  entered  in  its 
minutes,  may,  from  time  to  time,  remove  one  or  more 
counties  from  one  appellate  district  to  another,  where  the 
counties  so  removed  are  contiguous  to  counties  within  the 
district  to  which  removed.^ 

§  88. The  districts,  and  places  of  holding 

COURT.  The  constitution,  as  amended,  divides  the  state 
into  three  appellate  districts,  in  each  of  which  districts 
there  is  a  District  Court  of  Appeal,  consisting  of  three 
justices,  one  of  whom  is  presiding  justice  of  the  court. 
These  courts,  like  the  Supreme  Court,  are  always  open 
for  business.^  These  districts,  and  the  places  of  holding 
court,  are  as  follows : 

First  district  embraces  the  following  counties :  San 
Francisco,  Marin,  Contra  Costa,  Alameda,  San  Mateo, 
Santa  Clara,  Fresno,  Santa  Cruz,  Monterey,  and  San 
Benito.  The  regular  sessions  of  this  court  are  held  at 
the  City  of  San  Francisco. ^ 

Second  district  embraces  the  following  counties:  Tu- 
lare, Kings,  San  Luis  Obispo,  Kern,  Inyo,  Santa  Barbara, 
Ventura,  Los  Angeles,  San  Bernardino,  Orange,  River- 
side, and  San  Diego.  The  regular  sessions  of  this  court 
are  held  at  the  City  of  Los  Angeles.^ 

Third  district  comprises  the  counties  of:  Del  Norte, 
Siskiyou,  Modoc,  Humboldt,  Trinity,  Shasta,  Lassen, 
Tehama,  Plumas,  Mendocino,  Lake,  Colusa,  Xrlenn,  Butte, 
Sierra,  Sutter,  Yuba,  Nevada,  Sonoma,  Napa,  Yolo, 
Placer,  Solano,  Sacramento,  El  Dorado,  San  Joaquin, 
Amador,  Calaveras,  Stanislaus,  Mariposa,  Madera,  Mer- 
ced, Tuolumne,  Alpine,  and  Mono.  The  regular  sessions 
of  this  court  are  held  at  the  City  of  Sacramento.* 


2  Id. 

2  Id, 

3  Id. 

aid. 

1  Cal.  Const.  1879, 

art. 

VI, 

§4, 

as 

4  Id. 

amended  November 

8, 

1904 

[,  Hen- 

ning's  Gen.  Laws,  2d  ed. 

,  p. 

60. 

lo'i 

ch.  yii.]  justices  op  district  courts.  §§  89,  90 

§  89. Justices  :  teem  of  office  :  vacancies. 

The  justices  of  the  District  Courts  of  Appeal,  like  the 
justices  of  the  Supreme  Court/  are  elected  for  a  term  of 
twelve  years,  one  member  of  the  court  in  each  appellate 
district  going  out  of  office  and  his  successor  elected  every 
four  years. ^  In  case  any  vacancy  occurs  in  the  office  of  a 
justice  of  a  District  Court  of  Appeal,  the  governor  is 
empowered  to  appoint  a  person  to  hold  that  office  until  the 
election  and  qualification  of  a  justice  to  fill  the  vacancy, 
which  election  shall  take  place  at  the  next  succeeding  gen- 
eral state  election,  and  the  person  thus  elected  to  be  a, 
justice  shall  hold  the  office  for  the  unexpired  term.^  When- 
ever any  justice  of  a  District  Court  of  Appeal  is  for  any 
reason  disqualified  or  unable  to  sit  in  any  cause  or  causes 
pending  before  that  court,  the  Supreme  Court  may  ap- 
point a  justice  of  the  District  Court  of  Appeal  of  another 
district,  or  a  judge  of  a  Superior  Court  who  has  not  acted 
in  the  case  below,  to  act  pro  tempore  in  the  place  of  the 
justice  so  disqualified  or  unable  to  act.^ 

§  90. Appellate  and  original  jurisdiction. 

It  has  been  already  noted^  that  the  District  Courts  of 
Appeal,  like  the  Supreme  Court,  have  both  original-  and 
appellate^  jurisdiction;  but  the  functions  of  those  courts 
are  principally  appellate. 

Appellate  jurisdiction  of  the  District  Courts  of  Appeal 
embraces  the  following  classes  of  cases:  (1)  In  all  cases 
at  law  in  which  the  demand,'*  exclusive  of  interest,'"' 
amounts  to  three  hundred  dollars,  and  does  not  amount 
to  two  thousand  dollars;  (2)  in  all  cases  in  which  the 
value  of  the  property  in  controversy  amounts  to  three 
hundred  dollars,  and  does  not  amount  to  two  thousand 

1  See,  ante,  §  81.  i  See,  ante,  §  87. 

2  Cal.  Const.  1879.  art.  VI,  §  4.  as  ^  g^e,  ante,  §  84.  footnote  1. 
amended  November  8,  1904,  Hen- 

.    „        T  oj    ^         ^1  3  See,  ante,  §  84,  footnote  2. 

nnig  s  Gen.  Laws,  2d  ed.,  p.  61. 

;{ j(j  4  See,  ante,  §  85,  footnote  1. 

4  Id.  5  See,  ante,  §  85,  footnote  2. 

105 


§  90  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

dollars;®  (3)  in  all  cases  of  forcible  and  unlawful  entry 
and  detainer,  except  such  as  arise  in  Justices'  Courts; 
(4)  in  proceedings  in  insolvency;''^  (5)  in  actions  to  pre- 
vent or  abate  a  nuisance;  (6)  in  proceedings  of  man- 
damus, certiorari,  prohibition,  usurpation  of  office,  con- 
testing elections,  eminent  domain,  and  in  such  other 
special  proceedings^  as  may  be  provided  by  law,  excepting 
cases  in  which  appellate  jurisdiction  is  given  to  the  Su- 
preme Court;  (7)  on  questions  of  law^  only,  in  all  criminal 
cases  prosecuted  by  indictment  or  information  in  a  court 
of  record,  excepting  those  criminal  cases  in  which  a  judg- 
ment of  death  has  been  rendered ;  (8)  in  all  cases,  matters, 
and  proceedings  pending  before  the  Supreme  Court  which 
shall  be  ordered  by  that  court  to  be  transferred  to  a 
District  Court  of  Appeal  for  hearing  and  decision.^® 

In  equity  cases,  such  as  the  foreclosure  of  a  mort- 

gage,^^  and  in  cases  involving  the  title  to  and  possession 
of  real  estate,^^  a  District  Court  of  Appeal  has  no  juris- 
diction;^^ neither  has  it  jurisdiction  of  an  appeal  in  such 
a  case  from  an  order  not  involving  the  merits  of  the 
controversy.^^  Where  an  appeal  in  an  equity  case  is  taken 
to  a  District  Court  of  Appeal,  it  must  be  by  that  court 
transferred  to  the  Supreme  Court  ;^^  and  in  the  case  of 
an  appeal  to  a  District  Court  of  Appeal  in  a  case  involv- 
ing the  title  to  or  possession  of  real  estate,  it  has  no 
jurisdiction  to  dismiss  the  appeal  because  of  a  failure  to 
file  and  serve  a  transcript  of  the  record  in  tinie.^^ 

6  See,  ante,  §  84,  footnote  8.  13  Yuba  County  v.  North  Amer- 

7  See,  ante,  §  84,  footnote  13.  ican  Consol.  Gold  Min.  Co.,  12  Cal. 

8  See,  ante,  §§  7  and  8.  ^pp    121,  107  Pac.  139. 

9  See,  ante,  §  84,  footnote  10. 

10  Cal.  Const.  1879,  art.  VI,  §  4, 
as  amended  November  8,  1904, 
Henning's  Gen.  Laws,  2d  ed.,  p.  60. 

11  Aetna  Indem.  Co.  v.  Altadena  is  Aetna  Indem.  Co.  v.  Altadena 
Min.  &  Invest.  Co.,  11  Cal.  App.  26,  Min.  &  Invest.  Co.,  11  Cal.  App. 
104  Pac.  470.                                               26,  104  Pac.  470. 

12  Thomas  v.  Thomas,  22  Cal.  ic  Thomas  v.  Thomas,  22  Cal. 
App.  806,  136  Pac.  510.                             App.  806,  136  Pac.  510. 

106 


1^  Yuba  County  v.  North  Amer- 
ican Consol.  Gold  Min.  Co.,  19  Cal. 
App.  121,  107  Pac.  139, 


ell.  VII.]  TRANSFER   OF   CAUSES.  §  91 

Original  jurisdiction  of  a  District  Court  of  Appoal  in- 
cludes the  power  to  issue  writs  of  mandamus, ^'^  certiorari, 
prohibition/^  habeas  corpus,  and  all  other  writs  necessary 
or  proper  to  the  complete  exercise  of  its  appellate  juris- 
diction •,'^^  but  the  writ  of  ne  exeat  is  not  included  under 
the  code.-''  Each  of  the  justices  of  such  court  has  powder 
to  issue  writs  of  habeas  corpus  to  any  part  of  the  appel- 
late district  upon  petition  by  or  on  behalf  of  any  person 
held  in  actual  custody,^^  and  may  make  such  w^rits  return- 
able before  himself  or  the  District  Court  of  Appeal  of  his 
district,  or  before  any  Superior  Court  within  his  district, 
or  before  any  judge  of  such  latter  court.-- 

§  91. Transfer  of  causes  to  and  from.     We 

have  already  seen  that  a  District  Court  of  Appeal  has  no 
jurisdiction  over  an  appeal  in  an  equity  cause^  or  in  a 
cause  in  which  the  title  to  or  possession  of  real  estate  is 
involved,^  and  that  when  a  cause  belonging  to  either  of 
these  classes  of  causes  is  appealed  to  a  District  Court  of 
Appeals,  the  only  juriscHction  such  court  has  in  the  prem- 
ises is  jurisdiction  to  transfer  such  appeal  to  the  Supreme 
Court.^  The  Supreme  Court  may  order  any  cause  pend- 
ing before  it  to  be  heard  and  determined  by  a  District 
Court  of  Appeal,  or  to  order  any  cause  pending  in  a 
District  Court  of  Appeal  to  be  transferred  to  and  heard 
and  determined  in  the  Supreme  Court,  at  any  time  before 

17  See,  ante,  §  84,  footnote  16.  tion  to  issue  a  writ  of  habeas  cor- 

isSee  cases,  ante,  §84,  footnote      pus.— Gow,  In  re,  139  Cal.  242,  73 

17  Pac.  145;    Schmitz,  Ex   parte,  150 

10  See  cases,  ante,  §84,  footnote  ^^'-  ^^^'  ^9  Pac.  438;  Ford.  Ex 
^g  parte,    160    Cal.    334,    Ann.     Cas. 

1912D,    1267,   35    L.    R.   A.    (N.    S.) 

20  Harker,  Ex  parte,  49  Cal.  465.      noo    n^  n  „   tct     t^  t 

'         ^  882,  116  Pac.  757;   Bernson,  In  re, 

As  to  writ  ne  exeat,  see  notes  14  35  cal.  App.  344,  169  Pac.  916. 

Am.  Dec.  561,  118  Am.  St.  Rep.  989,  22  Cal.  Const.  1879,  art.  VI,  §  4. 

3  Ann.  Cas.  294,  7  L.  R.  A.  396.  as    amended    November    8,    1904, 

21  Voluntarily  submitting  to  im-  Henning's  Gen.  Laws,  2d  ed.,  p.  60. 
prisonment,    or   voluntary    surren-  1  See,  ante,  §  90,  footnote  11. 
der  to  the  sheriff  of  a  prisoner  out  2  See,  ante,  §  90,  footnote  12. 

on  bail,  does  not  confer  jurisdic-  3  See,  ante,  §  90,  footnotes  13-18. 

107 


§  92  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

final  judgment;  and  after  final  judgment  in  the  District 
Court  of  Appeal  within  thirty  days  after  the  day  of  such 
judgment;  after  thirty  days  from  the  day  of  rendering 
judgment  the  judgment  of  a  District  Court  of  Appeal 
becomes  final,  and  such  transfer  can  not  be  thereafter 
ordered.^ 

<^  92.  Superior  Courts — Courts  of  general  orig- 
inal, JURISDICTION,  The  courts  of  record  of  original 
general  jurisdiction  in  California  are  the  Superior  Courts, 
one  of  which  courts  exists  in  each  organized  county,  or 
city  and  county.^  For  each  of  these  courts  there  is  at 
least  one  judge,  although  the  legislature  may  provide  for 
more,  and  in  those  counties  in  which  there  is  more  than 
one  Superior  Court  judge,  there  may  be  as  many  sessions 
of  the  court,  at  the  same  time,  as  there  are  judges  thereof.- 
The  Superior  Courts  supersede  the  former  District 
Courts  and  Probate  Courts,  whose  jurisdiction  they  as- 
sume and  whose  functions  they  discharge.  The  Superior 
Courts  are  always  open  for  the  transaction  of  business,^ 
except  on  legal  holidays*  and  non-judicial  days,^  but  on 

4  Cal.  Const.  1879,  art.  VI,  §  4,  as  legal  and  a  nullity. — See  Smith, 
amended  November  8,  1904,  Hen-  Matter  of,  152  Cal.  566,  93  Pac. 
ning's  Gen.  Laws,  2d  ed.,  p.  60.  191;    People    v.    Heacock,    10    Cal. 

iCal.  Const.  1879,  art.  VI,  §  6,  App.  450,  102  Pac.  543;  Starr  v. 
Henning's  Gen.  Laws,  2d  ed.,  p.  62.      Superior  Court,  23  Cal.  App.  670, 

2  Id.;   §§  6,  7  and  8,  as  amended      139  Pac.  241. 

Nov.  8,  1910,  Henning's  Gen.  Laws,  Ministerial    acts   nQt  affected. — 

2d  ed.,  pp.  62,  63.  People  v.   Helm,   152   Cal.   532,  93 

3  Cal.  Const.  1879,  art.  VI,  §  5,  as      Pac.  99. 

amended   Oct.  10,  1911,  Henning's  New  trial   in  criminal  cause  not 

Gen.  Laws,  2d  ed.,  p.  62.  granted   where   the   agreement   of 

■i  Special    holidays    declared    by  counsel  and  instruction  of  the  jury 

the    governor,    being    without    an-  by  the  judge  took  place  after  12 

thority  of  law,   do  not  affect  the  o'clock  on  Saturday,  where  coun- 

process    and    proceedings    of    the  sel  for  the  prisoner,  on  his  atten- 

courts. — Risser  v.  Superior  Court,  tion  being  called  to  the  fact  that 

152  Cal.  531,  93  Pac.  85.  the  hour  of  12   o'clock   had   been 

5  Saturday  half-holiday  is  within  passed,  distinctly  and  in  open 
provisions  of  the  constitution,  and  court,  waived  objections  to  the 
judicial  proceedings  at  a  session  trial  proceeding. — People  v.  Magan, 
held    Saturday    afternoon    are    il-  34  Cal.  App.  384,  167  Pac.  547. 

108 


ell.  VII.]  SUPERIOR  COURTS — JUDGES.  §§  93,  94 

these  days  injunctions  and  writs  of  prohibition  may  be 
served.® 

Process  of  the  Superior  Court  extends  to  all  parts  of 
the  state,  except  that  in  all  actions  for  the  recovery  of,  or 
for  the  quieting  of  the  title  to,  real  estate,  or  for  the 
enforcement  of  liens  upon  real  estate,  must  be  commenced 
in  the  county  in  which  the  real  estate,  or  a  part  thereof, 
affected  by  such  action  or  actions,  is  situated."^ 

§  93. Election  and   term   of   judges.      The 

judges  of  the  Superior  Court  are  elected  by  the  qualified 
electors  of  the  county,  or  city  and  county,  at  the  general 
state  election,  and  shall  serve  for  the  term  of  six  years 
from  and  after  the  first  Monday  of  January  next  succeed- 
ing their  election.^  In  those  counties  in  which  there  are 
a  number  of  judges  provided  for  by  the  constitution  or 
by  statute,  the  term  of  office  of  the  various  judges  is  so 
apportioned  that  an  equal  number  shall  go  out  of  office 
every  two  years  and  their  successors  be  elected. ^ 

<^  94. Presiding   judge — Selection  and 

duties.  The  judges  of  the  Superior  Court,  in  all  counties 
and  cities  and  counties,  in  which  there  are  a  number  of 
judges  of  the  court,  shall  choose,  from  among  their  num- 
ber, a  presiding  judge,  who  may  be  removed  at  their 

Voidable  only   not  void  in  civil      amended    October    10,    1911,    Hen- 
proceeding. — McGrath  v.  Langford,      ning's  Gen.  Laws,  2d  ed.,  p.  62. 
25  Cal.  App.  Dec.  704,  169  Pac.  424.  i  Cal.  Const.  1879,  art.  VI,   §   6, 

^     ^     ^     „    .,  .  ..  Henning's  Gen.  Laws,  2d  ed.,  p.  62. 

6  See  footnote  3,  this  section.  _  ,        ,,         ,  „  '  ' 

See,  also,  Merced  Bank  v.  Rosen- 

This    provision    of    constitution  thai,  99  Cal.  39,  31  Pac.  849,  33  Pac. 

authorizes  legislature  to  allow  or  732;    People   ex    rel.    Hargrave    v. 

disallow  the  transaction  of  all  or  Markham,  104  Cal.  232,  37  Pac.  918. 

any  class  of  business  on  a  legal  Holding  court  bona  fide  on  first 

holiday  by  an  act  not  in  itself  ob-  Monday  of  January  next  after  elec- 

noxious   to   the    constitutional   re-  tion  of  successor,  judge  is  a  judge 

strictions.— Diepenbrock  v.  Super-  de    facto.— People   v.    Nye,    9    Cal. 

ior    Court,    153    Cal.    597,    95    Pac.  App.  165,  98  Pac.  247. 

1121.  2  Cal.  Const.   1879,  art.  VI,   §   6, 

7  Cal.  Const.  1879,  art  VI,  §  5,  as  Henning's  Gen,  Laws,  2d  ed.,  p.  62. 

109 


§§  95-97  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

pleasure.  It  shall  be  the  duty  of  the  presiding  judge  to 
distribute  the  business  of  the  court  among  the  judges 
thereof,  and  prescribe  the  order  of  business.^ 

§  95. Vacancies  :  fokfeiture  of  office. 

Should  a  vacancy  occur  in  the  office  of  a  judge  of  a 
Superior  Court,  the  governor  shall  appoint  a  person  to 
hold  the  office  and  discharge  the  functions  thereof  until 
the  election  and  qualification  of  a  judge  to  fill  the  vacancy, 
which  election  shall  take  place  at  the  next  succeeding  gen- 
eral election,  and  the  judge  so  elected  shall  hold  office  for 
the  remainder  of  the  unexpired  term.^  The  legislature 
has  no  power  to  grant  leave  of  absence  to  any  judicial 
officer ;  and  any  such  officer  who  shall  absent  himself  from 
the  state  for  more  than  six  consecutive  days  shall  be 
deemed  to  have  forfeited  his  office.^ 

§  96. Holding  court  in  another  county. 

A  judge  of  any  Superior  Court  may  hold  court  in  any 
other  county,  (1)  at  the  request  of  a  judge  of  a  Superior 
Court  of  such  other  county,  and  (2)  upon  the  request  of 
the  governor  it  is  his  duty  to  do  so.^  A  Superior  Court 
judge  of  a  particular  county,  who  holds  court  in  another 
county,  must  be  presumed,  in  the  absence  of  evidence  to 
the  contrary,  to  be  acting  upon  the  request  of  the  gover- 
nor, or  of  the  judge  of  the  court  of  the  latter  county.^ 

^  97. Judges  pro  tempore.     A  cause  in 

the  Superior  Court  may  be  tried  by  a  judge  pro  tempore, 
who  must  be  a  member  of  the  bar,  agreed  upon  in  writing 

1  Cal.  Const.  1879,  art.  VI,  §  6,  Eureka  Lake  &  Yuba  Canal  Co.  v. 
Henning's  Gen.  Laws,  2d  ed.,  p.  62.      Superior  Court,  66  Cal.  311,  5  Pac. 

1  Cal.  Const.  1879,  art.  VI,   §   6,      *""• 

Henning's  Gen.  Laws,  2d  ed.,  p.  62.  "  Newman,  In  re,  75  Cal.  213.  7 

Am.  St.  Rep.  146,  16  Pac.  887;  Peo- 

2  Cal.  Const.  1879,  art.  VI,  §  9,  ^j^  ^  ^^  ^ee  Boon,  97  Cal.  171, 
Henning's  Gen.  Laws,  2d  ed.,  p.  63.      ^-^^^  31  Pac.  933;  Craig  v.  Somers, 

1  Cal.  Const.  1879,  art.  VI,  §  8,  as  55  N.  J.  L.  525,  527,  27  Atl.  639; 
amended  November  8,  1910,  Hen-  Smith  v.  White,  107  Va.  619,  59 
ning's  Gen.  Laws,  2d  ed.,  p.  63.   See      S.  E.  481. 

110 


ch.  VII.]  JURISDICTION  OF  SUPERIOR   COURTS.  §  98 

by  the  parties  litigant,  or  tlieir  attorneys  of  record,  sworn 
to  try  the  cause,  and  the  person  so  selected  shall  be  em- 
l)ov.ored  to  act  in  such  capacity  in  all  further  proceedings 
in  any  suit  or  proceedings  tried  before  him  until  the  final 
determination  thereof.^ 

§98. Jurisdiction — In  general.  The  consti- 
tution vests  jurisdiction  in  the  Superior  Court  and  not  in 
any  particular  judge  or  department  thereof,  although  it 
provides  that  there  may  be  as  many  sessions  of  the  court 
at  the  same  time  as  there  are  judges.  Whether  sitting 
separately  or  together,  the  judges  hold  but  one  and  the 
same  court,  and  the  division  into  departments  is  purely 
imaginary,  and  for  the  convenience  of  business  and  of 
designation;  and  transferring  a  cause  from  one  depart- 
ment to  another  does  not  effect  a  change  or  transfer  of  the 
jurisdiction,  which  remains  at  all  times  in  the  court  as  a 
single  entity.^  Although  the  Superior  Court  derives  its 
authority  from  the  constitution  it  is  controlled  as  to  the 
mode  of  its  action  by  the  Code,  and  the  legislature  may 
regulate  the  mode  in  which  the  court  shall  exercise  its 
jurisdiction,  though  it  can  not  circumscribe  its  powers. - 

A  court  of  general  jurisdiction,  we  have  already  seen,^ 
and  that  its  process  is  co-extensive  with  the  state  except 
as  to  action  affecting  real  estate,^  and  the  regularity  of  its 
proceeding  is  presumed.^  In  pleading  a  judgment  of  the 
Superior  Court  it  is  not  necessary  to  aver  the  facts  con- 
ferring jurisdiction.  They  are  presumed  by  law.*'  But, 
although  the  exercise  of  jurisdiction  is  presumed  rightful, 

1  Cal.  Const.  1879,  art.  VI,  §  8,  as  3  See,  ante,  §  92. 

amended  November  8,  1910,  Hen-  4  id.,  footnote  7. 

ning's  Gen.  Laws,  2d  ed.,  p.  63.  5  People    v.    Robinson,    17    Cal. 

1  White  V.   Superior  Court,   110  363;    People  v.  Blackwell,  27  Cal. 
Cal.    60,    42    Pac.    480;    Brown    v.  65,  67. 

Campbell,  110  Cal.  644,  664,  43  Pac.  c  Campe  v.  Lassen,  67  Cal.  137, 

12;    People    v.    Carantan,    11    Cal.  7  Pac.  430;  Eichho£f,  Estate  of,  101 

App.  566,  105  Pac.  770.  Cal.  600,  36  Pac.  11.     See  Lynde  v. 

2  Burris  V,  Kennedy,  108  Cal.  331,  Columbus,   C.   &   I.   C.   R.   Co.,    57 
41  Pac.  458.  Fed.  993,  995. 

Ill 


§  99  CODE   PLEADING   AND   PRACTICE.  [Pt.  1, 

yet  if  it  appears  from  the  records  of  tlie  court  in  any 
matter  that  it  had  not  acquired  jurisdiction,  either  of  the 
subject-matter  or  of  the  parties,  this  presumption  is 
destroyed.''^ 

§  99. Original  and  appellate  jurisdic- 
tion. Superior  Courts  are  by  the  constitution  invested 
with  (1)  original  and  (2)  appellate  jurisdiction. 

Original  jurisdiction  of  the  Superior  Courts  is  as  fol- 
lows: (1)  In  all  cases  in  equity;^  (2)  in  all  cases  at  law 
which  involve  the  title  to  or  the  possession  of  real  estate ; 
(3)  in  all  cases  in  which  is  involved  the  legality  of  any 
tax,  impost,  assessment,  toll,  or  municipal  fine;  (4)  in  all 
other  cases  in  which  the  demand,-  exclusive  of  interest,^ 
or  the  value  of  the  property  in  controversy  amounts  to 
three  hundred  dollars ;  (5)  in  all  criminal  cases  amounting 
to  felony;  (6)  in  cases  of  misdemeanor  not  otherwise  pro- 
vided for;  (7)  in  actions  of  forcible  entry  and  detainer; 
(8)  in  proceedings  in  insolvency;  (9)  in  actions  to  prevent 
or  to  abate  a  nuisance;  (10)  in  all  matters  of  probate; 
(11)  in  actions  for  divorce  or  for  the  annulment  of  a 
marriage;  (12)  in  all  such  special  cases  and  proceedings'* 
as  are  not  otherwise  provided  for;  (13)  in  cases  of  depen- 
dent and  delinquent  minors;"  (14)  in  the  naturalization 
of  foreign-born  persons,  and  power  to  issue  papers  there- 
for; and  (15)  such  courts  and  their  judges  have  power  to 
issue  writs'  of  mandamus,  certiorari,  prohibition,  quo  war- 
ranto, and  habeas  corpus,  on  petition  by  or  on  behalf  of 
any  person  in  actual  custody,^  in  their  respective  counties ; 

7  Arroyo  Ditch.  &  Water  Co.  v.  781,   21   Ann.   Gas.    1355,   109    Pac. 

Superior  Court,  92  Cal.  47,  27  Am.  620. 

St.  Rep.  91,  28  Pac.  54.  2  gee,  ante,  §  95,  footnote  1. 

1  Powers  conferred  on  superior  3  g^^^  ^^^^^  g  95^  footnote  2. 
court    in    equity    cases    equal-  to 

those   exercised   by   the   chancery  '          ' 

courts    of    England.  —  Pasadena,  ^  See,  post,  §  101. 

City  of,  V.  Superior  Court,  157  Cal.  6  See,  ante,  §  90,  footnote  21. 

112 


ell.  \'il.]  ORIGINAL   AND   APPELLATE   J  UHISDICTIOX. 


§90 


and  injunctions  and  writs  of  prohibition  may  be  issued 
and  serv^ed  on  legal  holidays  and  non-judicial  days." 

Limitation  on  powers  is  such  that  the  Superior 

Court  can  not  exercise  original  jurisdiction  in  those  mat- 
ters in  which  its  jurisdiction  is  appellate  only.  Thus,  the 
jurisdiction  of  the  Superior  Court  in  causes  transferred 
to  it  under  section  838  of  the  Code  of  Civil  Procedure  is 
original  and  not  appellate,  and  if  it  would  have  had  no 
jurisdiction  if  the  action  had  been  commenced  therein,  it 
can  have  none  by  the  filing  of  pleadings  certified  by  a 
justice  of  the  peace. ^  When  sitting  in  an  equity  action,^ 
as  for  example  an  action  to  abate  a  nuisance,  the  court 
and  judge  are  possessed  of  all  the  powers  of  a  Court  of 
Chancery,^*^  and  will  assume  and  exercise  jurisdiction 
over  probate  matters. ^^ 

Appellate  jurisdiction  is  conferred  upon  Superior 
Courts  in  such  cases  as  arise  in  inferior  courts  in  their 
respective  counties  as  may  be  prescribed  by  law.^^  They 
have  no  appellate  jurisdiction  except  such  as  is  conferred 
upon  them  by  the  constitution.^^ 


7  Cal.  Const.  1879,  art.  VI,  §  5,  as 
amended  October  10,  1911,  Hen- 
ning's  Gen.  Laws,  2d  ed.,  p.  62. 

8  Arroyo  Ditch  &  Water  Co.  v. 
Superior  Court,  92  Cal.  47,  27  Am. 
St.  Rep.  91,  28  Pac.  54. 

0  Set  aside  decree  obtained  by 
fraud,  on  an  original  bill  filed  for 
that  purpose. — Sanford  v.  Head, 
5  Cal.  297;  Bacon  v.  Racon,  150 
Cal.  477,  485,  88  Pac.  320;  Hanley 
V.  Hanley,  4  Cof.  Prob.  (CaL)  476; 
Hanlon  v.  Fahy,  11  W.  Va.  494, 
496. 

10  See  Sanford  v.  Head,  5  Cal. 
297;  People  v.  Davidson,  30  Cal. 
379,  380;  Courtwright  v.  Bear 
River  &  Auburn  Water  &  Min.  Co., 
30  Cal.  573,  585;  Mohlstadt  v. 
Blanc,  34  Cal.  577;  Evans  v.  Ross, 
2    Cal.    Unrep.    543.    8    Pac.    89; 

1  Code  PI.  and  Pr.— 8  ^ 


Wright  V.  Superior  Court,  139  Cal. 
469,  477,  73  Pac.  145  (Shaw,  J.,  dis. 
op.) ;  Burns  v.  Superior  Court,  140 
Cal.  1,  6,  73  Pac.  597;  Meek  v.  De 
Lantour,  2  Cal.  App.  263,  83  Pac. 
301;  Faugh  v.  Faugh,  98  Ind.  470 
476;  Reigal  v.  Wood,  1  Johns.  Ch 
(N.  Y.)  402;  Wright  v.  Miller,  1 
Sandf.  Ch.  (N.  Y.)  103,  120,  8  N.  Y 
9;  59  Am.  Dec.  438. 

11  See  Sanford  v.  Head,  5  Cal. 
297;  Deck  v.  Gerke,  12  Cal.  436. 
73  Am.  Dec.  556;  Aldrich  v.  Willis, 
55  Cal.  86;  Rosenberg  v.  Frank,  58 
Cal.  400,  401. 

12  Cal.  Const.  1879,  art.  VI,  §  5, 
as  amended  October  10,  1911,  Hen- 
ning's  Gen.  Laws,  2d  ed.,  p.  62. 

13  See  People  v.  Peralta,  3  Cal. 
379;  Canfield  v.  Hudson,  3  Cal. 
389;    Hernandez  v.   Simon,  3   Cal. 


§100 


CODE   PLEADING  AND   PRACTICE, 


[Ft.  I, 


§100. 


Amount  in  controversy.  Iii 


actions  in  the  Superior  Court  for  the  recovery  of  money, 
that  court  has  jurisdiction  in  those  cases  in  which  the  sum 
demanded,  exclusive  of  interest,  amounts  to  three  hundred 
dollars  or  over,^  regardless  of  the  sum  for  which  judg- 
ment may  be  recovered;-  but  where  the  principal  sum 
demanded  is  less  than  three  hundred  dollars,  the  Superior 
Court  has  no  jurisdiction,^  although  costs  allowed  and  in- 
cluded in  the  judgment  increases  it  beyond  that  amount.^ 
The  ad  damnum  clause  of  the  complaint  is  the  test  of 
jurisdiction,^  and  where  the  demand  according  to  that 
clause  exceeds  three  hundred  dollars,  exclusive  of  inter- 
est, the  Superior  Court  has  jurisdiction  of  the  action.^ 
It  has  no  jurisdiction  of  an  action  against  a  tax-assessor 
to  recover  damages  alleged  to  have  been  caused  by  reason 
of  a  wrongful  and  fraudulent  assessment  made  by  him,  if 
the  amount  claimed  is  less  than  three  hundred  dollars.' 
Nor  has  it  jurisdiction  of  an  action  to  enforce  the  liabilitv 


464;  Gray  v.  Schupp,  4  Cal.  185; 
Reed  v.  McCormick,  4  Cal.  342; 
Parsons  V.Tuolumne  County  Water 
Co..  5  Cal.  43,  63  Am.  Dec.  76; 
Townsend  v.  Brooks,  5  Cal.  52; 
Zander  v.  Coe,  5  Cal.  230;  People 
V.  Applegate,  5  Cal.  295;  Keller  v. 
Franklin,  5  Cal.  432;  People  v. 
Shear,  7  Cal.  139,  140;  People  v, 
Vick,  7  Cal.  165,  166;  Beckett  v. 
Selover,  7  Cal.  215,  240,  68  Am. 
Dec.  237;  People  v.  Fowler,  9  Cal. 
85,  86;  People  v.  Johnson,  30  Cal. 
98,  101;  People  v.  Apgar,  35  Cal. 
389. 

1  See,  ante,  §  99. 

i;  Solomon  v.  Rees,  34  Cal.  28; 
Hoban  v.  Ryan,  130  Cal.  96,  98,  62 
Pac.  296;  Troy  v.  Hallgarth,  35 
Ore.  162,  165,  57  Pac.  374. 

3  Arnold  v.  Van  Brunt,  4  Cal.  89. 

4  Henigan  v.  Ervin,  110  Cal.  37, 
40,  42  Pac.  457. 


Rent  and  treble  damages  sued 
for  in  unlawful  detainer,  the  rent 
due  amounting  to  one  hundred  and 
twenty  dollars,  jurisdiction  is  in 
superior  court  and  not  in  a  jus- 
tices' court. — Hoban  v.  Ryan,  130 
Cal.  96,  62  Pac.  296. 

5  Bailoy  v.  Sloan,  65  Cal.  387,  4 
Pac.  349;  Lord  v.  Goldberg,  81  Cal. 
596,  599,  15  Am.  St.  Rep.  82,  84, 
22  Pac.  1126. 

See  notes  98  Am.  Dec.  584,  21 
Am.  St.  Rep.  617. 

Ad  damnum  clause  not  conclu- 
sive where  body  of  complaint 
shows  sum  feignedly  and  pur- 
posely added  for  the  sole  purpose 
of  obtaining  jurisdiction. — Lehn- 
hardt  v.  Jennings,  119  Cal.  192,  199, 
48  Pac.  56,  51  Pac.  195. 

c  Greenbaum  v.  Martinez,  86  Cal. 
459,  25  Pac.  12. 

7  Perkins  v.  Ralls,  71  Cal.  87,  11 
Pac.  860, 


114 


eh.  VII.]  JUVENILE  COURTS,  §  101 

of  the  stockholders  of  a  corporation  as  to  those  against 
whom  a  judgment  in  less  than  three  hundred  dollars  is 
demanded,  although  the  aggregate  indebtedness  of  the 
corporation  sued  upon  exceeds  that  sum.*  But  in  those 
cases  in  which  the  prayer  of  the  complaint  asks  for  the 
foreclosure  of  a  lien,  order  of  sale,  etc.,  the  cause  being  a 
suit  in  equity,  the  Superior  Court  has  jurisdiction,  re- 
gardless of  the  amount  claimed.^  Thus,  the  Superior 
Court  has  no  jurisdiction  to  enforce  a  tax-assessment 
amounting  to  less  than  the  jurisdictional  amount,  but  it 
may  foreclose  a  tax-lien  in  any  amount. ^^ 

<^  101.  — Juvenile  Court — Depen- 
dent AND  DELINQUENT  CHILDREN.  By  an  act  of  the  legisla- 
ture approved  March  8,  1909,^  an  effort  was  made  to  care 
for  and  reclaim  and  protect,  and  to  provide  for  the  care 
and  custody  of,  children  who  have  showTi,  or  who  from 
lack  of  proper  care,  are  likely  to  develop,  criminal  tenden- 
cies, in  order  to  have  them  trained  in  good  habits  and 
nurtured  in  correct  principles.  This  court  deals  in  a 
summary  manner  and  not  according  to  the  course  of  the 
common  law,  or  in  accordance  with  other  knowTi  legal 
procedure,  in  working  out  the  end,  aim,  and  purposes  of 
its  existence.  The  jurisdiction  of  this  court  is  an  addi- 
tional jurisdiction  conferred  upon  Superior  Courts^  to 
accomplish  the  purposes  and  ends  sought  by  the  legisla- 
ture. The  jurisdiction  thus  granted  is  an  exercise, 
through  the  Superior  Courts,  of  the  police  power  of  the 
state  as  much  as  any  other  extension  of  the  judicial  sys- 

8  Hyman  V.  Coleman,  82  Cal.  650,  lo  People    v.    Mier,    24    Cal.    61; 

16  Am.  St.  Rep.  178,  23  Pac.  62.  Bell  v.  Crippen,  28  Cal.  328. 


0  People    V.    Mier,    24    Cal.    61; 
Bell  V.  Crippen,  28  Cal.  328;   Max- 


1  Stats,  and  Amdts.  1909,  p.  213. 
For  forms  for  the  various  acts 
and  steps  in  the  juvenile  court,  see 
fieldv.Johnson,  30  Cal.  545;  Court-  j^^n  eolloction  in  Jury's  Adjudi- 
Wright  V.  Bear  River  &  Auburn  ^.g^ed  Forms  of  Pleading  and  Prac- 
Water  &  Min.  Co.,  30  Cal.  581;  t:ce,  vol.  2,  pp.  1961-1969. 
Solomon  v.  Rees,  34  Cal.  28;  Moh-  2  People   v.   Budd,   24   Cal,  App. 

stadt  V.  Blanc,  34  Cal.  577.  476,  140  Pac.  714. 

115 


§  102  CODE  PLEADING  AND  PRACTICE.  [Pt.  \, 

tern,  covering  matters  of  state  policy  and  not  "municipal 
affairs"  within  the  prohibition  of  the  constitution.^  The 
principal  object  of  the  act  is  to  provide  for  proper  custody 
and  education  of  those  children  who  do  not  have  the  care 
and  control  deemed  essential  to  their  right  development, 
although  their  situation  and  surroundings  may  not  be 
such  as  would  likely  lead  them  to  actual  crime  ;*  the  object 
manifestly  is  to  provide  protection  for  children  who  are 
''dependent"  as  well  as  for  those  who  are  "delinquent."'' 
The  act  provides  not  only  for  the  care,  custody,  control 
and  education  of  the  children  coming  within  the  act  and 
under  the  jurisdiction  of  the  Superior  Courts,  but  pro- 
vides also  for  the  commitment  of  delinquent  minors"  and 
the  punishment  of  adults  contributing  to  such  delin- 
quency.'^ Over  all  these  matters,  as  well  as  over  the  care 
and  control  of  the  children,  the  Superior  Courts  have 
exclusive  control,'^  and  from  their  decisions  in  the  exercise 
of  this  jurisdiction  there  seems  to  be  no  appeal.'-^ 

§  102. JUEISDICTION     IN     SPECIFIC     CLASSES     OF 

CASES — Abatement  of  nuisance.     The  constitution  con- 

3  NichoU  V.  Koster,  157  Cal.  416,  the  welfare  of  the  child  requires 
108  Pac.  302.  that  it  be  taken  from  the  custody 

4  Maginnis,   Matter   of,   162   Cal.  and  care  of  the  parent  or  guardiaiy. 
200,  121  Pac.  723.  — Brodie,  In  re,  24  Cal.  App.  Dec. 

Child  can  not  be  taken  without  905,  166  Pac.  605. 

consent  of  parent,  unless  the  court  t  People    v.    Bergotini,    172    Cal. 

finds  the  parent  incapable  of  pro-  717,  158  Pac.  198;  Goldsworthy,  Ex 

viding,  or  has  failed  or  neglected  parte,   22  Cal.  App.  354,   134  Pac. 

to    provide,    proper    maintenance,  532;  People  v.  Cruse,  24  Cal.  App. 

training    and    education    for    the  497,  141  Pac.  936;  People  v.  Oliver, 

child.— Cannon,  Matter  of,  27  Cal.  29  Cal.  App.  576,  136  Pac.  1003. 

App.  549,  150  Pac.  794.  s  Suggestion    defendant   under 

5  Maginnis,   Matter  of,   162   Cal.  age  of  eighteen   does  not  deprive 
200,  121  Pac.  723.  an  examining  magistrate  of  juris- 

c  Mills  Sing,  In  re,  14  Cal.  App.  diction  to  hold  such  minor  for  trial 

512,  112  Pac.  582.  in    the    superior    court. — Northon, 

Essential  to  validity  of  commit-  In  re,  35  Cal.  App.  369,  169   Pac. 

ment,  where  child  taken  from  cus-  1051. 

tody   of  parent  or  guardian,   that  o  Fowler  v.  Fowler,  24  Cal.  App. 

the  court  shall  make  a  finding  that  529,  141  Pac.  1053, 

116 


VIL] 


DIVORCE  AND  ANNULMENT. 


§103 


fers  upon  Superior  Courts  original  jurisdiction  in  actions 
in  equity^  to  prevent  or  abate  a  nuisance ;-  and  such  juris- 
diction, being  a  constitutional  grant,  can  not  be  taken 
away  by  the  action  of  the  legislature  in  attempting  to 
confer  exclusive  or  concurrent  jurisdiction  over  such 
cases  on  other  courts.^  Such  an  action  is  within  the  exclu- 
sive original  jurisdiction  of  a  Superior  Court.^ 


§103. 


Divorce   and   annulment.      The 


constitution  confers  upon  Superior  Courts  original  juris- 
diction to  hear  and  determine  suits  for  divorce  and  for  the 
annulment  of  marriage.^  In  a  suit  for  a  divorce,  and  for 
the  partition  of  property  acquired  during  coverture,  the 
jurisdiction  of  the  court  is  not  limited  as  to  the  amount  of 
the  property  involved;-  and  on  granting  a  divorce  may 
divide  the  property  equally,  on  the  theory  that  such  prop^ 
erty  was  acquired  by  the  joint  efforts  of  the  spouses.^  But 


1  As  to  extent  of  equity  powers 
of  superior  court,  see,  ante,  §  99, 
footnote  1. 

As  to  power  to  continue  tem- 
porary injunction  pending  appeal, 
see  note  21  Ann.  Cas.  1362. 

2  See,  ante,  §  99. 

For  forms  for  each  step  in  an 
action  to  abate  a  nuisance,  see 
Jury's  Adjudicated  Forms  of  Plead- 
ing and  Practice,  vol.  1,  pp.  744- 
746. 

Before  amendment  October  10, 
1911,  to  §  5,  art.  VI,  of  Cal.  Const., 
the  constitution  conferred  upon 
superior  courts:  (1)  in  all  cases  in 
equity,  (2)  "of  actions  to  prevent 
or  abate  a  nuisance."  This  last 
clause  was  held  to  make  actions  to 
prevent  or  abate  a  nuisance  ac- 
tions at  law. — Learned  v.  Castle 
(Cal.,  June  17,  1884),  4  Pac.  191, 
192. 

3  Fitzgerald  v.  Urton,  4  Cal.  235; 
Courtwright  v.  Bear  River  &  Au- 
burn  Water  &.   Min.    Co.,   30   Cal. 


573;  Yolo  County  v.  Sacramento, 
36  Cal.  193,  195. 

Tlie  holding  in  Leonard  v.  Castle, 
67  Cal.  41,  7  Pac.  34,  that  in  hear- 
ing an  action  to  abate  a  nuisance 
a  superior  court  sits  as  a  special 
and  not  as  an  ordinary  equitable 
tribunal,  is  without  force  since  the 
amendment  to  the  constitution  of 
October  10,  1911. 

4  People  v.  Wing,  147  Cal.  379, 
81  Pac.  1103. 

1  See,  ante,  §  99. 

For  forms  In  divorce  proceed- 
ings, see  Jury's  Adjudicated  Forms 
of  Pleading  and  Practice,  vol.  1, 
pp.  470-496. 

For  forms  in  annulment  proceed- 
ings, see  Jury's  Adjudicated  Forms 
of  Pleading  and  Practice,  vol.  1, 
pp.  448-451. 

2  Deuprey  v.  Deuprey,  5  Cal.  387. 

3  Galland  v.  Galland,  38  Cal.  265, 
44  Cal.  475,  477.  13  Am.  Rep.  168; 
De  Godey  v.  De  Godey,  39  Cal.  157, 
164. 


117 


§103 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I, 


where  community  property  is  not  disposed  of  on  a  decree 
of  divorce,  this  will  not  conclude  the  parties,  or  either  of 
them,  in  respect  to  their  claim  to  such  property.^  And 
the  Superior  Court  has  jurisdiction  to  decree  alimony,  as 
maintenance,  to  the  wife,  in  a  separate  action,  uncon- 
nected with  a  suit  for  a  divorce  ;^  and  it  also  has  jurisdic- 


Permanent  alimony  on  an  action 
for  divorce  brought  by  the  wife  is 
usually  an  incident  of  the  judg- 
ment granting  the  decree,  and  is 
not  dependent  upon  allegations  in 
the  complaint  respecting  the  prop- 
erty or  resources  of  the  defendant. 
—Gaston  v.  Gaston,  114  Cal.  542, 
55  Am.  St.  Rep.  86,  46  Pac.  609. 

Separate  character  of  land  may 
be  ascertained  and  determined  by 
the  superior  court  in  such  action 
and  the  title  quieted.— Glass  v. 
Glass,  4  Cal.  App.  604,  88  Pac.  734. 

It  is  otherwise,  it  seems,  in  an 
action  for  the  annulment  of  a  mar- 
riage. See  footnote  12,  this  sec- 
tion. 

Supreme  Court  has  no  jurisdic- 
tion to  make  an  order  relative  to 
alimony  in  an  action  pending  be- 
fore it  on  appeal;  application  must 
be  made  to  the  superior  court  from 
which  the  appeal  was  taken. — See 
Reilly  v.  Reilly,  60  Cal.  624. 

Transfer  of  community  property 
by  husband,  wife  can  not  maintain 
action  to  set  aside  before  a  divorce 
is  granted. — Greiner  v.  Greiner,  58 
Cal.  120. 

4  De  Godey  v.  De  Godey,  39  Cal. 
157,  161;  Biggi  v.  Biggi,  98  Cal.  35, 
38,  35  Am.  St.  Rep.  142,  32  Pac. 
803;  Kirschner  v.  Dietrich,  110  Cal. 
502,  505,  42  Pac.  1064;  Burdick, 
In  re,  112  Cal.  386,  396,  44  Pac. 
734. 

Under  Oregon  Code,  absolute  di- 
vorce bars  wife's  right  to  dower, 


unless  reserved  by  the  lex  loci. — 
Barrett  v.  Failing,  111  U.  S.  523, 
529,  28  L.  Ed.  506,  507,  4  Sup.  Ct. 
Rep.  598,  affirming  6  Sawy.  477,  3 
Fed.  475. 

5  ALA. — Glover  v.  Glover,  16  Ala. 
440,  446.  CAL.— Galland  v.  Gal- 
land,  38  Cal.  265,  44  Cal.  475,  477, 
13  Am.  Rep.  168;  Poole  v.  Wilbur, 
95  Cal.  339,  342,  30  Pac.  548;  Mur- 
ray v.  Murray,  115  Cal.  266,  274,  56 
Am.  St.  Rep.  102,  37  L,  R.  A.  626, 
47  Pac.  37;  Livingston  v.  Superioi 
Court,  117  Cal.  633,  634,  635,  3S 
L.  R.  A.  175,  49  Pac.  836;  Paxton  v. 
Paxton,  150  Cal.  667,  671,  89  Pac. 
1083.  COLO.— Daniels  v.  Daniels, 
9  Colo.  133,  148,  151,  10  Pac.  657; 
Popejoy,  In  re,  26  Colo.  32,  35,  77 
Am.  St.  Rep.  224,  55  Pac.  1083. 
HAWAII— Dole  v.  Gear,  14  Hawaii 
556.  IOWA— Graves  v.  Graves,  36 
Iowa  314,  14  Am.  Rep.  529.  KY.— 
Logan  v.  Logan,  41  Ky.  (2  B.  Mon.) 
142.  MISS.— Garland  v.  Garland, 
50  Miss.  708,  710,  713.  NEB.— 
Earle  v.  Earle,  27  Neb.  277,  282, 
20  Am.  St.  Rep.  670,  43  N.  W.  118; 
Cochran  v.  Cochran,  42  Neb.  612, 
620,  60  N.  W.  942.  S.  C— Prather 
v.  Prather,  4  Desaus.  (S.  C.)  33; 
Rhome  v.  Rhome,  1  McC.  Ch.  197, 
16  Am.  Dec.  597.  VA.— Purcell  v. 
Purcell,  4  Hen.  &  Munf.  (Va.)  507; 
Almond  v.  Almond,  4  Rand.  (Va.) 
662,  15  Am.  Dec.  781. 

Decree  rendered  another  state 
enforced  in  West  Virginia. — See 
Stewart  v.  Stewart,  27  W.  Va.  172. 


118 


(•!l.  VII.]  ANNULMENT  OF  MARRIAGE.  §  103 

tion  to  enforce  an  agreement  for  a  separation  and  to  grant 
alimony  in  connection  therewith.**  Wherever  the  wife  is 
entitled  to  live  separate  and  apart  from  her  husband,  by 
reason  of  breaches  of  matrimonial  duty  committed  by  him, 
a  concurring  adjudication  must  be  pronounced  that  he 
support  her  while  so  living  apart.''' 

Annulment  of  marriage  may  be  had  at  any  time  during 
the  joint  lives  of  the  parties.  A  complaint  asking  annul- 
ment is  not  bad  by  reason  of  laches,^  or  because  it  alleges 
marriage  on  a  specified  date  and  then  avers  that  the  par- 
ties ''ever  since  have  been,  and  now  are,  husband  and 
wife."^  Such  an  action  is  a  suit  in  equity,^**  and  the 
fullest  opportunity  should  be  given  the  parties  to  be 
heard. ^^  A  cause  of  action  for  annulment  of  marriage 
and  a  cause  of  action  to  quiet  the  title  of  the  plaintiff  to 
separate  property  should  not  be  joined.^^  Qj-^  h^q  ^^.j^^j  ^f 
an  action  for  the  annulment  of  a  marriage,  after  the  testi- 
mony in  the  case  has  all  been  taken,  the  Superior  Court 
is  without  jurisdiction  to  continue  the  cause  to  a  period 
beyond  a  year  from  the  granting  of  an  interlocutory 
decree  of  divorce  to  the  plaintiff  from  a  man  to  whom  she 
had  been  previously  married. ^^ 

Nonresident  wife  may  bring  ac-  (2     Stockt.)     138,    143;     Corey    v. 

tion    for   maintenance    where    she  Corey,  11  N.  J.  Eq.  (3  Stockt.)  400. 

has  ground  for  a  divorce. — Hiner  See,    also,    2    Story's    Eq.    Jur., 

V.  Hiner,  153  Cal.  257,  94  Pac.  1046.  §§  1422,  1424. 

6  Galland  v.  Galland,  38  Cal.  265,  g  Stierlin  v.  Stierlin,  18  Cal  App 

44  Cal.  475,  477,  13  Am.  Rep.  168.  609,  124  Pac.  226,  228. 


«  Linebaugh    v.    Linebaugh,    137 
Cal.  26,  69  Pac.  616. 


7  GA.— McGee  v.  McGee,  10  Ga. 
477.  IND.— Fischli  v.  Fischli,  1 
Blackf.  360,  365,  12  Am.  Dec.  251; 

Chapman  v.  Chapman,  13  Ind.  397.  '"  ^^^^^^  ^-  Aharon.  67  Cal.  185, 

MASS.-Shannon   v.    Shannon,    68  ^^^'  "^  P^^-  '♦^G.  635,  8  Pac.  709. 

Mass.  (2  Gray)   285.     MICH.— Pel-  n  Wadsworth  v.  Wadsworth.  81 

tier  V.  Peltier,  Harr.  Ch.  19.    MISS.  <"»'•  182.  1S3,  15  Am.  St.   Rep.  38. 

— Lawson  v.  Shotwell,  27  Miss.  630.  22  Pac.  648. 

MO.— Doyle  v.  Doyle,  26  Mo.  545.  i2Uhl  v.  TThl.  52  Cal.  2.10. 

N.  H. — Parsons  v.  Parsons,  9  N.  H.  In  divorce  it  seems  to  be  other- 

309,   32   Am.    Dec.    362;    Sheafe   v.  wise.— See  footnote  3,  this  section. 

Sheafe,    24    N.    H.    (4    Fost.)    564.  i3  Mason  v.    Superior   Court,   24 

N.  J.— Yule  V.  Yule,  10  N.  J.  Eq.  Cal.  App.  386,  143  Pac.  554. 


§§104,105  code  pleading  and  practice.  [i't.  i, 

§104. Forcible    entry    and    detainer. 

The  present  constitution  of  California  vests  jurisdiction 
in  actions  of  forcible  entry  and  detainer  in  the  Superior 
Courts,^  subject  to  the  proviso  that  Justices'  Courts  shall 
have  concurrent  jurisdiction  in  such  actions,  where  the 
rental  value  of  the  property  in  dispute  does  not  exceed 
twenty-five  dollars  per  month,  and  where  the  whole 
amount  of  damages  claimed  does  not  exceed  two  hundred 
dollars. 2 

§  105. Fugitives  from  another  state. 

Under  the  federal  constitution,  article  IV,  §  2,  extradition 
by  an  accusing  state,  and  apprehension  and  surrender  by 
the  asylum  state,  of  a  person  fleeing  from  justice,  is  an 
absolute  right  and  duty,^  because  that  provision  of  the 
federal  constitution,  being  a  part  of  the  law  of  the  land, 
is  a  part  of  the  law  of  each  state,  and  state  ofiScers  whose 
duty  it  is  to  adjudicate  or  execute  the  laws,  are  governed 
by  it  the  same  as  by  every  other  law  in  force.  A  court  of 
general  jurisdiction,  exercising  the  powers  of  a  common- 
law  court,  is  fully  competent  to  hear  and  determine  all 
matters,  and  to  issue  all  necessary  writs  for  the  apprehen- 
sion and  transfer  of  the  fugitive  criminal  to  the  author- 
ized agents  of  the  state  from  whence  he  fled.-  The  Su- 
perior Courts,  being  courts  of  general  original  jurisdic- 
tion, exercising  the  usual  powers  of  common-law  courts, 
are  fully  competent  to  hear  and  determine  all  matters, 

1  See,  ante,  §  99.  582;   Work  v.  Corrington,  34  Ohio 

For  forms  in  forcible  entry  and      St.  64,  32  Am.  Rep.  345;  Kentucky 


detainer,    see    Jury's    Adjudicated 
Forms   of    Pleading    and    Practice, 


V.  Dennison,  65  U.  S.  (24  How.)  66, 

103,  16  L.  Ed.  717,  726-7. 

See   notes   57   Am.    Dec.   389,   32 
vol.  1,  pp.  917-920.  ^^    P,^p   355 

2  Cal.  Const.  1879,  art.  VI.  §  11,  por  forms  in  all  proceedings  re- 

as  amended  October  10,  1911,  Hen-  lating     to     probate     matters,     see 

Ding's  Gen.  Laws,  2d  ed.,  p.  63.  Cliurch's    Probate    Law   and    Prac- 

1  Romaino,  In  Matter  of,  23  Cal.  tice,  under  appropriate  head. 

585,  590;    Fetter,  In  matter  of,  23  2  Romaine,  In  matter  of,  23  Cal. 

N.  J.  L.  (3  Zab.)   311,  57  Am.  Dec.  585,  590. 

120 


eh.  VIL] 


LOST  RECORDS PARTITION  FENCE. 


§§  lOG,  10- 


and  to  issue  all  necessary  writs  for  the  arrest  and  transfer 
of  fugitive  criminals  to  the  authorized  agent  of  the  state 
from  which  they  fled,  without  any  special  legislation  ;•'  or 
to  inquire  into  the  legality  of  their  detention  under  a 
requisition  from  a  governor  of  another  state.* 


§106. 


Lost  record  :  presumption.  When 


the  court  has  once  acquired  jurisdiction,  it  is  not  lost  by  a 
failure  to  preserve  a  record  of  the  acts  by  which  it  was 
acquired,^  and  the  acts  of  the  court  in  exercising  its  inher- 
ent power  to  amend  its  record,  or  to  supply  a  lost  record, 
will  be  presumed  to  have  been  properly  exercised.- 

§  107. Partition  fence  —  Recovery  of 

VALUE.  The  Superior  Courts  have  jurisdiction  of  actions 
to  recover  one-half  of  the  value  of  a  partition  fence,  al- 
though the  amount  sought  to  be  recovered  is  less  than 
three  hundred  dollars — such  action  involving^  title  to 
land.2 


3  Id. 

4  Robb,  In  re,  64  Cal.  431,  1  Pac. 
881,  affirmed  in  Robb  v.  Connolly, 
111  U.  S.  624,  28  L.  Ed.  542,  4  Sup. 
Ct.  Rep.  544, 

1  Sichler  v.  Look,  93  Cal.  600,  29 
Pac.  220;  Jones  v.  Gunn,  149  Cal. 
693,  87  Pac.  579;  Lunnun  v.  Morris, 
7  Cal.  App.  710,  715,  95  Pac.  907; 
Douglass,  Matter  of  estate  of,  4 
Cof.  Prob.  (Cal.)  353. 

2  Sichler  v.  Look,  93  Cal.  600,  29 
Pac    220. 

As  to  presumption  as  to  juris- 
diction, see,  ante,  §  43. 

1  "Involve"  as  used  in  the  consti- 
tution  is  difficult  to  define  with 
rrecision.  "Its  primary  sisnifl- 
cance  is  to  'roll  up  or  enveloi),'  and 
it  also  means  'to  comprise,  to  con- 
tain, to  include  by  rational  or  logi- 
cal construction,'  but  none  of  these 


express  the  precise  idea,  and  its 
exact  synonym  may  not  be  found 
in  a  single  word.  The  idea  in- 
tended to  be  embodied  in  the 
phrase  'cases  at  law  which  involve 
the  title  or  possession  of  real  prop- 
erty' may  be  expressed  by  the  para- 
phrase: 'cases  at  law  in  which  the 
title  or  possession  of  real  property 
is  a  material  fact  in  the  case,  upon 
which  the  plaintiff  relies  for  a  re- 
covery or  the  defendant  for  a  de- 
fense.' When  the  title  or  claim  of 
title,  the  possession  or  right  of 
possession,  of  real  property,  or  any 
right  growing  out  of  or  dependent 
upon  either,  is  alleged  in  theplrad- 
ing  as  an  issuable  fact,  the  case  is 
within  the  meaning  of  the  constitu- 
tion."— Rhodes,  J.,  In  Ilolman  v. 
Taylor,  31  Cal.  338,  339-340. 

li  Holnan  V.  Taylor,  31  Cal.  338. 


121 


§§  108,  109  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

<^  108. Person  or  property  in  another 

STATE.  The  question  of  the  jurisdiction  of  a  court  over 
real  property  or  other  res  situated  in  another  state/  or 
over  the  persons  of  parties  resident  in  another  state,-  has 
been  already  discussed;  it  remains  but  to  add  here  that 
where  the  Superior  Court,  sitting  as  a  court  of  equity, 
has  jurisdiction  over  the  person  of  a  nonresident  defen- 
dant, it  has  power  to  decree  a  conveyance  by  him  of  land 
situated  within  the  county^  or  lying  without  the  state  ;*  or 
to  decree  the  rescission  of  a  contract  made  for  the  con- 
veyance of  lands  situated  in  another  state  or  country,  for 
fraud  or  other  sufficient  reason,  and  also  to  decree  the 
cancellation  of  notes  and  mortgages  given  as  the  purchase 
price,  or  as  a  part  of  the  purchase  price  for  such  lands  f 
or  to  decree  an  absolute  deed  of  lands  in  another  state  a 
mortgage,  and  to  redeem  therefrom,^  but  an  order  for  an 
accounting  of  profits  thereunder  can  not  be  ordered  until 
after  the  court  has  determined  that  the  conveyance  was 
in  fact  a  mortgage.^ 

<^  109. Probate  matters.  The  constitu- 
tion of  California  invests  the  Superior  Courts  of  the  state 
with  jurisdiction  in  all  probate  matters.^  The  jurisdic- 
tion of  these  courts  over  the  settlement  and  distribution 
of  the  estates  of  decedents  is  twofold.     As  a  tribunal 

1  See,  ante,  §§  71  and  78,  par.  8.  See  notes  in  20  Am.  St.  Rep.  212; 

2  See,  ante,  §§  72  and  78,  par.  6.        2  Ann.  Gas.  819;  69  L.  R.  A.  673. 
SEpperly  v.  Ferguson,  118  Iowa      ^  Loaiza    v.    Superior    Court,    85 

4  McGee  v.  Sweeny,  84  Cal.  100,  „^^    ^     ^yx\.xx2.\    Benefit    Life    Ins. 
23  Pac.  1117;  Idaho  Gold  Min.  Co.  co.,  16  Cal.  App.  93,  116  Pac.  385. 
V.  Winchell,  6   Idaho  729,   736,  96  ,3  Peninsular  Trading  &  Fishing 
Am.  St.  Rep.  290,  59  Pac.  533;  Sul-  Co.  v.  Pacific  Steam  Whaling  Co., 
livan  V.  Kenney,  148  Iowa  361,  388,  123  Cal.  689,  56  Pac.  604. 
126  N.  W.  349,  359.     See  Allen  v.  7  Id. 
Buchanan,  97  Ala.  399,  402,  83  Am.  1  See,  ante,  §  99. 
St.  Rep.  189,  11  So.  777;  Proctor  v.  As   to    alt    probate    matters,    see 
Proctor,   215  111.   275,   106   Am.   St.  Church's   excellent   work  on  "Pro- 
Rep.    168,    2    Ann.    Gas.    819,    69  bate  Law  and  Procedure,"  2  vols. 
L.  R.  A.  673,  74  N.  E.  145.  and  supplement. 

122 


Ch.  VII.]  ADMINISTRATION  OF  ESTATES.  §  109 

possessing  the  full  equity  jurisdiction  of  the  English 
Court  of  Chancery,  it  has  jurisdiction  of  an  ordinary 
equitable  action  for  the  settlement  of  the  estate  of  a 
decedent,  notwithstanding  the  statutes  of  the  state  have 
provided  a  full  and  complete  system  for  the  administra- 
tion of  such  estates.  As  the  successor,  under  the  Constitu- 
tion of  1879,  of  the  former  Probate  Courts,  it  possesses 
jurisdiction  to  administer  such  estates  in  accordance  ^\dth 
the  statutory  system,-  although  the  jurisdiction  is  sep- 
arate and  distinct  from  the  jurisdiction  in  ordinary  civil 
matters;^  it  may  apply  equitable  principles  to  promote 
justice  in  all  matters  pending  before  it  sitting  in  probate  ;^ 
and  it  has  been  said  that  a  Superior  Court,  while  sitting 
in  probate,  is  not  a  statutory  tribunal,  and  does  not  derive 
its  powers  from  acts  of  the  legislature.^ 

In  administration  of  estates  tlie  facts  of  the  death  of  the 
deceased,  and  of  his  residence  within  the  county,  are 
foundation  facts  upon  which  all  subsequent  proceedings 
of  the  Superior  Court,  sitting  as  a  court  of  probate,  rest.*^ 
Where  such  court  has  jurisdiction  of  the  subject-matter, 
all  intendments  are,  under  the  statute,  in  favor  of  the 

2  Allgier,   In   re,   65   Cal.    228,   3  bate  on  the  equitable  jurisdiction 

Pac.  849.  of  the  courts  of  the  various  states 

No  probate  court  of  the  city  and  will    be    found    in   Pomeroy's   Eq., 

county  of  San  Francisco,  but  the  §§  347-352,  1153. 

superior  court  has  jurisdiction  of  3  All"-ier    In  re     65   Cal    228     3 

probate  matters,  and   there  is  no  p^c.  849;  Rose,  In  re,  80  Cal.  166, 

law  authorizing  the  designation  of  -j^y^    22  Pac   86 
any  one  department  of  said  court 
for  probate  jurisdiction,  but  each 
of  the  twelve  judges  has  jurisdic- 

tion  in  probate  matters.   In  Rosen-  /  ^^""'s    v.    Kennedy,    108    Cal. 

berg   V.    Frank,    58    Cal.    387,   this  ^^1'  ^^  P^*^-  '^5^- 

point    was    examined    with    great  c  Haynes  v.  Meeks,  10  Cal.  110, 

care,  and  the  effect  of  the  statu-  70  Am.  Dec.  703;  Townsend  v.  Gor- 

tory  system  of  probate  stated  as  don,   19   Cal.  205;    Harlan,   Matter 

given  in  the  text.     See,  also,  Par-  of  estate  of,  24   Cal.   182,   85   Am. 

sons.  Matter  of  estate  of,  113  Cal.  Dec.  58. 

577,  45  Pac.  849.  As  to  jurisdictional  facts  neces- 

Complete  examination  of  the  ef-  sary     to     support    administration, 

feet  of  statutory  systems  of  pro-  see  note  68  Am.  Dec.  257. 

123 


4  .lohnson,  Matter  of  estate  of,  4 
Cof.  Prob.  (Cal.)  500. 


§  109  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

correctness  of  the  action  of  the  court,  the  same  as  in  other 
courts  of  record.'^  Thus,  letters  of  administration  upon 
an  estate,  granted  by  the  Probate  Court,  can  not  be  col- 
laterally attacked  by  showing  that  the  last  residence  of 
the  deceased  was  not  in  that  country,  and,  therefore,  that 
the  court  had  no  jurisdiction.^ 

Dying  out  of  state,  leaving  property  in  a  county  of 

the  state,  and  the  Superior  Court  of  that  county,  sitting 
in  probate,  takes  jurisdiction  of  the  estate  and  grants 
letters  of  administration,  such  court  can  not  divest  itself 
of  jurisdiction  by  transference  to  another  county,  on  re- 
quest of  widow,  heirs  and  personal  representative,  on  the 
ground  that  such  other  county  should  have  taken  juris- 
diction originally,  and  that  the  interests  of  several  per- 
sons who  are  interested  in  the  estate  will  be  advanced  by 
such  transfer.^ 

Former  Probate  Courts  had  no  jurisdiction  to  adminis- 
ter upon  the  estates  of  deceased  persons  who  died  prior 
to  the  adoption  of  the  first  Constitution  in  California ;  but 
the  estates  of  deceased  persons  in  the  state,  who  died 
prior  to  the  passage  of  the  Probate  Act  of  1850,  and  sub- 
sequent to  the  adoption  of  the  common  law,  can  be  admin- 
istered on  in  accordance  with  the  provisions  of  the  Pro- 
bate Acts  in  force. ^" 

Superior  Court  sitting  in  probate  is  the  same  as  it  is 
while  sitting  in  cases  in  equity,  in  cases  at  law,  or  in  spe- 
cial proceedings,  except  that  it  is  of  special,  limited  and 

7  Irwin  V.  Scriber,  18  Cal.  499;  so  far  as  to  the  question  of  resi- 
Lucas  V.  Todd,  28  Cal.  182.  dence  of  decedent  at  time  of  his 

8  Irwin  V.  Scriber,  18  Cal.  499;  <^eath  is  concerned,  in  Irwin  v. 
Halleck  V.  Moss.  22  Cal.  276;  Dole.  Scriber.  18  Cal.  499) ;  Territory  v. 

,,  ^^  „  .  ,  f  ^An  r,„,  100  Klee.  1  Wash.  183,  188,  23  Pac. 
Matter  of  estate  of.  147  Cal.  188.       .   „ 

417. 
194.  81  Pac.  534.  /-       *     ,  *       *  .i 

Court  of  county  of  residence  of 

9  Scott,  Matter  of  estate  of,  15  decedent  has  sole  power  to  admin- 
Cal.  220.  See  Beckett  v.  Selover,  jster  estate.— See  note  91  Am.  Dec. 
7  Cal.  215,  68  Am.  Dec.  237  (said,      508. 

in  Stevenson  v.  Superior  Court,  62  lo  Downer  v.  Smith,  24  Cal.  114; 

Cal.  63,  to  have  been  overruled,  in      Coppinger  v.  Rice,  33  Cal.  423. 

124 


ell.  VII.]  T.VXES  AND  ASSESSMENTS.  §110 

inferior  jurisdiction.^^  And  when  it  lias  jurisdiction  of 
the  subject-matter  of  a  case  falling  within  either  of  these 
classes,  it  has  power  to  hear  and  determine,  in  the  mode 
jjrovided  by  law,  all  questions  of  law  and  fact  the  deter- 
mination of  which  is  ancillary  to  a  proper  judgment  in 
such  case,^^  in  accordance  with  the  law  relating  to  probate 
matters.  ^^ 

§  110. Taxes  and  assessments.^  The  Su- 
perior Courts  have  original  jurisdiction  in  matters  involv- 
ing the  legality  of  an  assessment  for  taxation  or  a  tax, 
and  also  over  an  action  to  recover  a  tax,  the  legality  of 
which  is  put  in  issue;-  where  the  action  is  originally 
brought  before  an  inferior  court, — e.  g.,  a  police  court, — 
from  which  an  appeal  is  taken,  and  the  parties  proceed  to 
trial  upon  the  merits  in  such  appealed  action,  over  Avhich 
the  Superior  Court  has  no  appellate  jurisdiction,  its  orig- 
inal jurisdiction  is  not  affected  by  the  irregular  way  in 
which  it  acquired  the  jurisdiction  over  the  parties,  by 

11  Haynes  v.  Weeks,  10  Cal.  110,  v.  Mier,  24  Cal.  61,  affirmed  in  Bell 
70  Am.  Dec.  703;  Townsend  v.  v.  Crippen,  28  Cal.  327.  See,  also, 
Gordon,  19  Cal.  188.  Courtwright  v.  Bear  River  &  Au- 

12  Burton,    Matter   of   estate   of,      ^"^^   ^ater   &    Min.   Co.,   30   Cal. 

581;    Mohlstadt  v.   Blanc,   34   Cal. 
580. 

Under     Revenue    Act     May     12, 
956,   30   Pac.   106;    Burris  v.  Ken-      ^^^^^   ^^   ^^^.^^   ^^    ^^^^^,^^    .^^^„_ 

nedy,    108    Cal.    331,    41    Pac.    458.  j^g^t  f^j.  unpaid  taxes  was  a  case 

See  Farley  v.  Parker,  6  Ore.  113,  jn   equity,   and   the   district   court 

25  Am.   Rep.   504;    Steel  v.   Halla-  had     jurisdiction,     although      the 

day,  20  Ore.  70,  77,  10  L.  R.  A.  670,  amount    claimed    was    less    than 

25  Pac.  69.  three     hundred     dollars. — Bell     v. 

i3Pennie  v.  Roach,  94  Cal.  515,  Crippen,  28  Cal.  327. 

29  Pac.  556,  30  Pac.  106.  i;  santa  Barbara,  City  of,  v.   El- 

1  Before    Revenue    Act    of    1861,  dred,  95  Cal.  378,  30  Pac.  562. 

an  action  to  recover  judgment  for  For  forms  in  proceedings  relat- 

unpaid   taxes  was   not  a  case   in  ing  to  taxes  and  assessments   in 

equity,  but  an  action  at  law,  and  which    their   validity    is    attacked, 

where  the  amount  was  less  than  see   Jury's   Adjudicated    Forms   of 

three  hundred  dollars,  the  district  Pleading  and   Practice,  §  110  (2), 

court  has  no  jurisdiction. — People  vol.  1,  683-691. 

125 


93  Cal.  459,  29  Pac.  36;  Permie  v 
Roach,    94    Cal.   515,   521,   29    Pac 


§  111  CODE  PLEADING    AND   PRACTICE.  [Pt.  I, 

consent  to  and  proceeding  to  trial  upon  the  merits  the 
parties  waived  the  irregularity  of  procedure.^ 

Assessments  hy  private  corporation ,  made  under  the 
provisions  of  section  three  hundred  thirty-one  of  the  Cali- 
fornia Civil  Code,  upon  its  stockholders  pursuant  to  con- 
tract, express  or  implied,  are  not  included  wdthin  the 
provision  of  the  constitution  conferring  upon  Superior 
Courts  jurisdiction  over  assessments;"*  this  jurisdiction 
has  reference  to  such  assessments,  only,  as  are  authorized 
in  relation  to  revenue  and  taxation,  and  such  as  may  be 
made  under  the  authority  of  a  municipal  or  other  pubUc 
corporation  to  meet  the  cost  or  expense  of  a  public  im- 
provement.^ 

§  111. Validity  of  election  by  corpora- 
tion. The  Superior  Courts,  as  the  constitutional  succes- 
sors of  the  former  District  Courts,  sitting  as  a  court  of 
equity,^  have  jurisdiction  to  determine  the  validity  of  an 
election  by  a  private  corporation,  under  sections  312  and 
315  of  the  Civil  Code,  notwithstanding  the  fact  that  these 
sections  of  the  code  designate  the  court  having  jurisdic- 
tion as  the  District  Court  of  the  county  or  district  in  which 
the  election  was  held.^  Upon  the  adoption  of  the  constitu- 
tion of  1879,  the  District  Courts  theretofore  existing  were 
suspended  by  the   Superior   Courts,  and  the   Superior 

:•.  Santa  Barbara,  City  of,  v.  El-  i  Arroyo  Ditch   &  Water  Co.  v. 

dred,    95    Cal.    378,    30    Pac.    562;  Superior  Court,  92  Cal.  47,  27  Am. 

Hart   V.    Carnall-Hopkins   Co.,   101  st.  Rep.  91,  28  Pac.  54.    See  Bottle 

Cal.    IGO,    163,   35    Pac.    633;    Ran-  ^In.  &  Mill.  Co.  v.  Kern.  154  Cal. 

dolph   V.    Kraemer,    106    Cal.    199,  gg   gg    g^  p^^   35 
201,    39    Pac.    533;    De   Jarnatt   v. 

Marquez,  132  Cal.  700,  702,  64  Pac.  ^  Arroyo  Ditch  &  Water  Co.  v. 

1090;     Johnson    v.     Erickson,     14  Superior  Court,  92  Cal.  47,  27  Am. 

N.   D.   417,   105  N.  W.   1105.     See  St.  Rep.  91,  28  Pac.  54. 

Allen  V.  Belcher,  8  111.    (3  Gilm.)  ,  ^.^^^^    ^^    Central    California 

594;  Randolph  County  y.  Ralls,  18  ^^^^^           ^^  ^^^            ^  p^^    ^^ 
111.   29;    Birks  v.   Houston,   68   111. 

77;   Harrington  v.  Heath,  15  Ohio  2  Wickersham  v.  Brittain,  93  Cal. 

483;    Van  Dyke  v.   Rule,  49   Ohio  34,  15   L.   R.  A.  106,  28   Pac.   792, 

St.  530,  535,  31  N.  E.  882.  29  Pac.  51. 

126 


ell.  YII.]  justices'  COURTS.  §112 

Court  was  given  original  jurisdiction  ''of  all  such  special 
cases  and  proceedings  as  are  not  otliermse  provided  for." 
Article  XXII,  §  11,  of  the  constitution,^  provides  that  **all 
laws  relative  to  the  present  judicial  system  of  the  state 
shall  be  applicable  to  the  judicial  system  created  by  this 
constitution  until  changed  by  legislation."  This  provi- 
sion of  Article  XXII,  §  11,  of  the  constitution  was  and  is 
self-executing,  not  requiring  any  act  of  the  legislature  to 
put  it  in  full  force  and  effect.^  The  fact  that  an  act  passed 
after  the  adoption  of  the  constitution  for  the  purpose  of 
adopting  the  several  codes  to  the  nomenclature  of  the 
courts  as  contained  in  the  constitution,  omitted  such 
change  in  any  particular  section  of  any  one  of  the  codes, 
does  not  have  the  effect  to  deprive  the  Superior  Court  of 
the  jurisdiction  conferred  by  the  constitution.^  But  this 
jurisdiction  to  inquire  into  the  validity  of  an  election  of 
an  officer  to  an  office  in  a  corporation,  does  not  extend  to 
the  appointment  of  such  officer  to  his  office  and  position." 

§112.    Justices'  Courts — Establishment  of.     In 

California  the  office  of  justice  of  the  peace  is  a  creation  of 
the  constitution,^  can  not  be  created  by  any  city  charter, 
and  such  officer  is  elected  at  a  general  state  election,  and 
qualifies  under  the  general  law  of  the  state;-  but  by  the 
constitution^  the  legislature  has  power  to  determine  the 
number  of  justices  of  the  peace  to  be  elected  in  townships, 

3  Hemiing's   Gen.   Laws,   2d   ed.,  i  Cal.  Const.  1879,  art.  VI,  §  11, 
p.  95.                                                             as  amended  October  10,  1911,  Hen- 

4  Wickersham  v.  Brittain,  93  Cal.      ^^^S's  Gen.  Laws,  2d  ed.,  p.  63. 

34.  15  L.  R.  A.  106,  28  Pac.  792,  29  '"  Colorado,  justices  of  the  peace 


Pac.  51 


are  constitutional  officers. — Pueblo 
County  V.  Smith,  22  Colo.  534,  33 

5  Wickersham  v.  Brittain,  93  Cal.      l.  R.  A.  465,  45  Pac.  357. 

34,  15   L.   R.  A.  106,  28   Pac.  792,  2  Armstrong,   Ex   parte,   84   Cal. 

29  Pac.  5L  655,   24   Pac.   598;    People  ex   rel. 

6  Wickersham  v.  Brittain,  93  Cal.  Wood  v.  Sands,  102  Cal.  12,  36  Pac. 
34,  15  L.  R.  A.  106,  28  Pac.  792.  404;  Graham  v.  Fresno,  151  Cal. 
29  Pac.  51;   Id.;    Griffing  Iron  Co.      409,  471,  472,  91  Pac.  148. 

(A.  A.),  In  re,  63  N.  J.  L.  175,  41  •■!  Art.  VI,  §  11,  footnote  1,  thla 

Atl.  931.  section. 

127 


§113  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

incorporated  cities  and  towns,  or  cities  and  counties,  and 
may  fix  by  law  the  powers,  duties,  and  responsibilities  of 
such  officers,  pro\'ided  such  powers  shall  not  in  any  case 
trench  upon  the  jurisdiction  of  the  several  courts  of  rec- 
ord, except  that  said  justices  shall  have  concurrent  juris- 
diction with  the  Superior  Courts  in  cases  of  forcible  entry 
and  detainer,  where  the  rental  value  does  not  exceed 
twenty-five  dollars  per  month,  and  where  the  whole 
amount  of  damages  claimed  does  not  exceed  two  hundred 
dollars,  and  in  cases  to  enforce  and  foreclose  liens  on 
personal  property  where  neither  the  amounts  of  the  liens 
nor  the  value  of  the  property  amount  to  three  hundred 
dollars.^ 

§  113. Term  of  office  of  justices  :  vacancies  : 

HOLDING  OVER.  The  California  Code  of  Civil  Procedure, 
§  110,  provides  that  the  term  of  office  of  justices  of  the 
peace  shall  be  two  years  from  the  first  day  of  January 
next  succeeding  their  election ;  and  this  provision  has  been 
held  to  be  constitutional.^  Vacancies  occurring  in  the 
office  of  justice  of  the  peace  in  the  various  townships  are 
to  be  filled  by  the  board  of  supervisors  of  the  county;- 
but  vacancies  occurring  in  the  office  of  city  justice  of  the 
peace  are  to  be  filled  by  the  mayor  of  the  municipality, 
under  charter-provision  empowering  him  to  appoint  suit- 
able persons  to  fill  vacancies,  such  a  justice  of  the  peace 
not  being  either  a  city  or  a  county  officer.^     Until  the 

4  Ballerino   v.    Bigelow,   90   Cal.  to  justice  of  the  peace  in  city  and 

500,  27  Pac.  372.  county  of  San  Francisco,  which  is 

1  Bailey  v.  San  Joaquin  County,  under  municipal  government,  and 

66  Cal.  10,  56  Am.  Rep.  73,  4  Pac.  ^^  ^°^  divided  into  townships.— 
768:   Shearer  v.  Oakland.  City  of,  ^^^^    ^-    ^^^t^"'    ^^^    ^^^-   316,    33 

67  Cal.  633,  8  Pac.  384;  People  ex      "-  ^J,^'  ^f '  't  ^^^^  ^^■ 

,    „r     A         o     ^      -.  Ao   ^  ,    -.  o  -  French  v.  Santa  Clara  County, 

rel.  Wood  v.   Sands,   102   Cal.   12,      r.Q  r,„,    rm    ,-,    „        oa     o.^  ^ 

69  Cal.  519,  11  Pac.  30;  State  ex 
36  Pac.  404;  Ballantyne  v.  Bower.  ^el.  Moody  v.  Cronin,  5  Wash.  398, 
17  Wyo.  356,  365,  17  Ann.  Gas,  82,      31  pac.  864. 

99  Pac.  869.  3  People  ex  rel.  Wood  v.  Sands, 

Term  of  office  of  township  jus-      102  Cal.  12,  36  Pac.  404,  affirming 
tices,  statute  fixing  does  not  apply      4  Cal.  Unrep.  424,  35  Pac.  330. 

128 


Ch.  VII.]  JURISDICTION  OF  JUSTICES.  §  114: 

proper  qualification  of  the  person  duly  elected  or  ap- 
pointed to  the  office,  the  former  incumbent  is  legally  en- 
titlct]  thereto.^ 

^  1  [4 JuKiSDiCTiON — In  general.  In  addi- 
tion to  the  jurisdiction  given  them  concurrent  with  the 
Superior  Courts,  Justices'  Courts  have  civil  jurisdiction 
witliin  their  respective  townships  or  cities,  (1)  in  actions 
arising  on  contracts  for  the  recovery  of  money  only,  if 
the  sum  claimed,  exclusive  of  interest,  does  not  amount  to 
three  hundred  dollars;  (2)  in  actions  for  damages  for 
injury  to  the  person,  or  for  taking,  detaining,  or  injuring 
personal  property,  or  for  injury  to  real  property  where 
no  issue  is  raised  by  the  verified  answer  of  the  defendant, 
involving  the  title  to  or  possession  of  the  same,  if  the 
damages  claimed  do  not  amount  to  three  hundred  dollars ; 
(3)  in  actions  to  recover  the  possession  of  personal  prop- 
erty, if  the  value  of  such  property  does  not  amount  to 
three  hundred  dollars;  (4)  in  actions  for  a  fine,  penalty, 
or  forfeiture,  not  amounting  to  three  hundred  dollars, 
given  by  statute,  or  the  ordinance  of  an  incorporated  city 
and  county,  city  or  town,  where  no  issue  is  raised  by  the 
ar.  iwer  involving  the  legality  of  any  tax,  impost,  assess- 
ment, toll,  or  municipal  fine;  (5)  in  actions  upon  bonds, 
or  undertakings  conditioned  for  the  payment  of  money, 
if  the  sum  claimed  does  not  amount  to  three  hundred  dol- 
lars, though  the  penalty  may  exceed  such  sum ;  (6)  to  take 
and  enter  judgment  for  the  recovery  of  money  on  the 
confession  of  a  defendant,  when  the  amount  confessed, 

4  People  V.  Chaves,  122  Cal.  134,  City  justice  abolished,  incumbent 

54  Pac.  596;    People  v.  Cobb,  133  can  not  hold  over  after  expiration 

Cal.  74,  65  Pac.  325.     See  Meyer  v.  of  term.— State  v.  Howell,  26  Utah 

Culver,  4  Ariz.  145,  35   Pac.  9S4;  53,  72  Pac.  187. 

Ward   V.    Clark,    35    Kan.    315,    10  Justice  in  New  iVIexico,  not  being 

Pac.  827;   Wainwright  v.  Fore,  22  a  county  office,  held  not  to  hold 

Okla.  87,  37   Pac.  831;    Plattville,  over    under    enabling    act. — Terri- 

City   of,  v.   Bell,   66   Wis.   326,   28  tory   v.   Witt,    16   N.   M.    335,   117 

N.  W.  404.  Pac.  860. 

I  Code  PI.  and  Pr.— 9  129 


§  115  CODE  PLEADING  AND  PRACTICE,  [Pt.  T, 

exclusive  of  interest,  does  not  amount  to  three  hundred 
dollars.^ 

Jiirisdictiou  does  tiot  extend,  however,  to  any  action  or 
proceeding  against  ships,  vessels,  or  boats,  for  the  recov- 
ery of  seamen's  wages  for  a  voyage  performed  in  whoh' 
or  in  part  wdthout  the  waters  of  the  state.-  The  civil 
jurisdiction  of  such  court  extends  to  the  limits  of  the  city 
or  township  in  which  they  are  held,  but  mesne  and  final 
process  may  be  issued  to  any  part  of  the  county  in  which 
they  are  helcl.^  A  justice  of  the  peace  has  no  power  to 
vacate  or  set  aside  a  judginent  rendered  by  him,  except  a 
judgment  by  default,*  unless  upon  a  motion  for  a  new 
trial.^ 

§  115. JUEISDICTION  MUST  AFFIRMATIVELY 

APPEAR,  A  Justices'  Court,  and  other  courts  of  inferior 
and  limited  jurisdiction, — e,  g,,  a  police  court,^ — being  a 
court  of  inferior  jurisdiction,  no  presumptions  are  in- 
dulged to  aid  its  record  for  the  purpose  of  conferring 
jurisdiction.-  A  person  relying  upon  or  claiming,  under 
a  judgment  of  a  Justices'  Court  or  other  inferior  court, 
any  right  or  title,  must  affirmatively  show  the  court's 
authority  to  act  in  the  matter — its  jurisdiction,^  The 
jjowers  conferred  upon  such  courts  by  the  statute  must  be 

1  Kerr's  Cyc."  Cal.  Code  of  Civ.  26  Pac.  647;  Ferguson  v.  Bason 
Proc,  §  12.  ConsoL   Mines,   152    Cal.   712,   715, 

2  Id.,  §  114.  93  Pac.  869;   Wright  v.  Warner,  1 

3  Id.,  §106.  Doug.     (Mich.)     384;     Layton     v. 

4  Weimmer  v.  Sutherland,  74  Tropp,  20  Mont.  453,  456,  52  Pac. 
Cal.  341,  15  Pac.  849.  208;      Thompson     v.     Multnomah 

oWeider  v.  Fitzpatrick,  35  Cal.  County,  2  Ore.  35;  Willits  v.  Wal- 

269.  ter,  32  Ore.  414,  52  Pac.  24;   Mal- 

1  Kearny,  Ex  parte,  55  Cal.  212,  heur  County  v.  Carter,  52  Ore.  620, 
217,  228.  98  Pac.  491. 

2  Kearny,  Ex  parte,  55  Cal.  212;  Complaint  on  justice's  judgment 
Layton  v.  Tropp,  20  Mont.  453,  52  must  affirmatively  allege  obtain- 
Pac.  208;  Dick  v.  Wilson,  10  Ore.  ing  of  jurisdiction. — Hopper  v. 
490.  Lucas,  8.6  Ind.  46;   Dick  v.  Wilson, 

sjolley  V.  Foltz,  34  Cal.  321;  10  Ore.  490  (modified  in  Ashley  v. 
Kane  v.  Desmond,  63  Cal.  464;  Peck,  53  Ore.  414,  110  Pac.  1105. 
Eltzroth  V.  Ryan,  89  Cal.  135,  140,      because  of  change   in  rule   as   to 

130 


Ch.  VII.]  JURISDICTION  MUST  APPEAR.  §  113 

strictly  pursued."*  Their  powers  are  thus  determined: 
When  that  part  of  the  California  Code  of  Civil  Procedure, 
which  expressly  deals  with  proceedings  in  Justices' 
Courts,  prescribes  the  powers  of  those  courts  in  relation 
to  a  general  subject  about  which  the  powers  of  courts  of 
record  are  expressly  prescribed  in  another  part  of  that 
Code,  then  the  powers  of  the  Justices'  Courts  ^^4th  respect 
to  that  subject  are  to  be  determined  by  the  provisions  of 
that  Code  expressly  applicable  to  them,  and  not  by  the 
provisions  expressly  applicable  to  courts  of  record."'  A 
Justices'  Court  has  jurisdiction  of  an  action  to  recover  a 
deposit  made  by  a  vendee  under  an  executory  contract  for 
the  sale  of  land,  by  which  he  agreed  to  purchase  the  land 
if  the  title  was  good,  and  in  which  it  was  stipulated  that 
if  the  title  should  not  be  good,  the  deposit  was  to  be 
returned  f  but  where  the  question  of  title  is  shown  by  the 
pleadings  to  be  a  material  issue  in  the  cause,  action  should 
be  brought  in  or  transferred  to  the  Superior  Court,  al- 
though the  amount  demanded  is  less  than  three  hundred 
dollars.'^    The  personal  liability  of  a  stockholder  for  his 

pleading    judgment    of    court    of  tices'  Court,  35  Utah  449,  100  Pac. 

special  jurisdiction).  1066. 

Default  judgment  entered  on  de-  5  Weimmer  v.  Sutherland,  74  Cal. 

fective  summons,  is   merely  void-  341;  15  Pac.  849;  Richmire  v.  An- 

able. — Keybers    v.    McComber,    67  drews    &    Gale    Elevator    Co.,    11 

Cal.  395.  396,  7  Pac.  838.  N.  D.  453,  92  N.  W.  819. 

Defective  affidavit  of  service,  or  6  Schroeder  v.  Wittram,  66  Cal. 

want  of  affidavit  to  service  of  sum-  636,  6  Pac.  737;    Fry  v.  Dunn,  70 

mons,    where    served    by    private  Kan.  337,  78  Pac.  815;  Sheppard  v. 

person,    fatal    to    jurisdiction    of  Coeur    d'Alene     Lumber    Co.,     62 

court.— Layton  v.  Tropp,  20  Mont.  Wash.  14,  15,  Ann.  Cas.  1912C,  909, 

453,  52  Pac.  208.  44   L.   R.  A.    (N.   S.)    267,   112   Pac. 

Docket  entry  that  summons  was  933. 

returned    served,    ineffective. —  Compare:    Hart  v.   Cornall-Hop- 

Kane  v.  Desmond,  03  Cal.  467.  kins  Co.,  103  Cal.  132,  141,  37  Pac. 

Transcript  of  proceedings  must  196;   Dungan  v.  Clark,  159  Cal.  32, 

show   the  jurisdiction  of  the  jus-  112  Pac.  719;  Legum  v.  Blank,  105 

tice.— Monroe  v.  Thomas,  35  Ore.  Md.  133,  65  Atl.  1074. 

175,  57  Pac.  420.  7  Copertini    v.     Oppermann,     76 

4  Jones  v.  Justices'  Court,  97  Cal.  Cal.  181,  184,  18  Pac.  256;  Dungan 

523,  32  Pac.  575;   Griffiths  v.  Jus-  v.  Clark,  159  Cal.  32,  112  Pac.  719. 

131 


§  115  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

proportion  of  the  indebtedness  of  tlie  corporation  is  an 
obligation  arising  upon  contract,  witliin  the  meaning  of 
the  Code  of  Civil  Procedure,^  giving  original  jurisdiction 
to  a  Justices '  Court  in  actions  arising  upon  contract  for 
the  recovery  of  money,  when  the  amount  claimed  is  less 
than  three  hundred  dollars.^  And  a  Justices'  Court  has 
jurisdiction  of  an  action  to  recover  a  sum  of  money  less 
in  amount  than  three  hundred  dollars  for  a  fine,  penalty, 
or  forfeiture  given  by  statute  or  ordinance  of  a  municipal 
corporation,  provided  no  question  of  the  legality  of  any 
tax,  impost,  assessment,  toll,  or  municipal  fine  is  raised. ^° 
An  action  in  Justices '  Court  by  the  assignee  of  funds  in 
the  hands  of  a  receiver  is  an  action  at  law,  and  under  the 
common-law  was  an  action  in  assumpsit,  not  a  suit  in 
equity,  and  is  within  the  jurisdiction  of  the  Justices' 
Court,  if  the  fund  sued  for  is  less  than  three  hundred  dol- 
lars, and  is  within  the  appellate  jurisdiction  of  the  Su- 
perior Court. ^^  And  where  the  consideration  of  a  note 
sued  upon  in  a  Justices '  Court  by  a  private  corporation, 
to  which  the  note  was  executed,  is  assailed  upon  the 
ground  that  it  was  given  for  an  illegal  assessment  upon 
the  stock  of  the  corporation  plaintiff,  the  Justices '  Court, 
having  jurisdiction  of  the  amount  of  the  note,  has  full 
jurisdiction  to  detennine  all  questions  relating  to  the 
assessment,^-  and  has  no  authority  to  certify  the  plead- 
ings to  the  Superior  Court.^^  But  neither  a  Justices' 
Court,  nor  a  Superior  Court  on  appeal,  has  jurisdiction 

But  see   Hart  v.   Carnall-Hopkins  lo  Culbertson  v.  Kinevan,  68  Cal. 

Co.,  103  Cal.  132,  142,  37  Pac.  196.  490,  9  Pac.  455;    Williams  v.  Mc- 

s  See  Kerr's   Cyc.   Cal.   Code  of  Cartney,  69  Cal.  556,  11  Pac.  186. 

Civ.  Proc,  §  112.  iiGarniss  v.  Superior  Court,  88 

9  Dennis  v.    Superior   Court,   91  Cal.  413,  26  Pac.  351. 

Cal.  548,  27  Pac.  1031.     See  Ken-  12  As  to  assessments,  see,  ante, 

nedy  v.  California   Sav.  Bank,  97  §  110. 

Cal.  93,  96,  100,   33  Am.  St.    Rep.  13  Arroyo  Ditch  &  Water  Co.  v. 

163,  31  Pac.  846;   Norris  v.  Wren-  Superior  Court,  92  Cal.  47,  27  Am. 

schall,  34  Md.  492.  St.  Rep.  91,  28  Pac.  54. 

132 


ell.  vir.] 


TITLE  TO  REAiyrV   INVOLVED. 


§116 


of  an  action  to  recover  the  possession  of  specific  personal 
property  alleged  to  exceed  three  hundred  doHars  in  value, 
althoui>li  the  corafjlaint  prays  judgment  for  a  less 
amount,^^  in  case  possession  can  not  be  had  ;^"'  because  tlie 
jurisdiction  of  the  Justices'  Court  depends  upon  the 
amount  sued  for.^° 

§  116. Title  or  possession  of  real  prop- 
erty INVOLVED — Certification  to  Superior  Court.  In  all 
those  cases  in  which  the  title  to,  or  the  possession  of,  real 
property  is  involved  and  a  material  issue,^  a  Justices' 
Court  is  without  jurisdiction  to  try  the  cause,-  but  must 


1-i  As  to  amount  of  demand  con- 
trolling jurisdiction,  see,  ante, 
§  100. 

15  Shealor  v.  Superior  Court,  70 
Cal.  564,  11  Pac.  653. 

16  Id.;  Hoban  v.  Ryan,  130  Cal. 
96,  98,  62  Pac.  296. 

As  to  ad  damnum  clause,  or  de- 
mand, see,  ante,  §  100. 

1  Title  or  possession  incidentally 
involved  in  such  a  manner  that  it 
must  be  decided  in  order  to  deter- 
mine the  cause,  the  action  must  be 
tried  in  the  superior  court. — Hart 
V.  Carnall-Hopkins  Co.,  103  Cal. 
132,  37  Pac.  196. 

See,  also,  ante,  §  108,  footnote  1. 

2  See,  ante,  §  114.  CAL.— King 
V.  Kutner-Goldstein  Co.,  135  Cal. 
65,  67  Pac.  10;  Dungan  v.  Clark, 
159  Cal.  30,  112  Pac.  718.  IDAHO— 
Haiiimer  v.  GaiTett,  15  Idaho  657, 
99  Pac.  124.  MINN.— Tordsen  v. 
Gummer,  37  Minn.  211,  34  N.  W. 
20.  MONT. — Driscoll  v.  Dunwoody, 
7  Mont.  394,  16  Pac.  726.  ORE.— 
Sweek  v.  Galbreath,  11  Ore.  516,  6 
Pac.  220;  Aiken  v.  Aiken,  12  Ore. 
203,  6  Pac.  682;  German  Evangeli- 
cal Reformed  Bethany  Church  v. 
Schindler,  56  Ore.  247,  108  Pac.  178. 


UTAH — Dercheneau  v.  House,  4 
Utah  383,  369,  10  Pac.  427. 

Denial  on  information  and  belief 
of  plaintiff's  title  does  not  oust 
court  of  jurisdiction. — Malarkey  v. 
O'Leary,  34  Ore.  493,  56  Pac.  521. 

Ejectment  by  purchaser  at  fore- 
closure, plea  plaintiff,  who  was 
mortgagee  under  whom  mortgage 
sale  was  made,  agreed  to  extend 
date  of  payment  beyond  day  on 
which  sale  was  made,  does  not 
raise  question  of  title  and  oust 
justices'  court  of  jurisdiction. — 
Hamill  v.  Clear  Creek  County 
Bank,  22  Colo.  384,  45  Pac.  411. 

As  to  forcible  entry  and  de- 
tainer, see  next  footnote. 

Improper  plea  setting  up  till  not 
permitted  by  courts,  to  oust  of 
jurisdiction. — McQuiston  v.  Wal- 
ton, 12  Okla.  130,  69  Pac.  1048. 

Injuries  to  growing  crops  by 
trespassing  animals  being  alleged 
and  prayer  for  damages  in  a  sum 
less  than  three  hundred  dollars,  a 
justices'  court  has  jurisdiction,  be- 
cause possession  of  this  land  is 
required  to  be  shown  simply  as  an 
incident. — Fisch  v.  Nice,  12  Cal. 
App.  60.  106  Pac.  598;  Wilkins 
V.  Lee,  73  Kan.  321,  85  Pac.  140. 


133 


§116 


CODE   PLEADING   AND    PRACTICE. 


[Pt.  I. 


certify  it  to  the  Superior  Court.'*  And  where,  in  an  action 
in  Justices'  Court,  the  defendant  interposed  an  answer 
raising  an  issue  of  title  and  offered  proof  under  it,  it  was 
held  that,  upon  the  offer  of  proof,  the  jurisdiction  of  the 
justice  ceased  and  the  judgment  afterwards  rendered  was 

Cal.  App. 


Killing  cattle  by  railroad  "pas- 
sing through  lands  owned  and  im- 
proved by  private  owners"  being 
charged,  a  denial  of  such  allega- 
tion does  not  put  the  question  of 
title  in  issue. — Oregon  Short  Line 
R.  Co.  V.  District  Court,  30  Utah 
371,  85  Pac.  360. 

Removal  of  windmill  under  chat- 
tel mortgage  and  suit  by  benefic- 
iary of  trust  deed  covering  the 
land,  claiming  windmill  attached 
and  a  part  of  the  realty,  does  not 
involve  title  to  the  land.— Vaughn 
V.  Grisby,  8  Colo.  App.  373,  46  Pac. 
624. 

Trespass  on  land  alleged,  title 
not  necessarily  involved. — State  ex 
rel.  Launiza  v.  Justices'  Court,  29 
Nev.  191,  87  Pac.  1. 

Unnecessary  allegation  of  owner- 
ship not  denied  in  the  answer, 
does  not  oust  court  of  jurisdiction. 
— Heiney  v.  Heiney,  43  Ore.  577, 
73  Pac.  1038. 

Verification  of  answer  not  requi- 
site to  oust  justices'  court  of  juris- 
diction.— King  v.  Kutner-Goldstein 
Co.,  135  Cal.  65,  67  Pac.  10. 

3  See  Kerr's  Cyc.  Cal.  Code  of 
Civ.  Proc,  §  838;  Dungan  v.  Clark, 
159  Cal.  30,  112  Pac.  718;  Bonncll 
v.  Gill,  41  Colo.  59,  92  Pac.  13. 

Allegation  of  conclusion  of  affi- 
ant that  title  to  real  property  was 
involved,  without  setting  out  any 
of  the  facts  upon  which  that  con- 
clusion is  founded,  does  not  war- 
rant a  removal  to  superior  court 
under  Cal.  Code  Civ.  Proc,  §  838.— 


McAllister  v.  Tindal,  1 
236,  81  Pac.  1117. 

Complaint  stating  no  cause  of 
action,  justices'  court  acquires  no 
jurisdiction,  and  can  not  convey 
any  by  certifying  the  cause. — State 
ex  rel.  Lott  v.  District  Court,  33 
Mont.  356,  83  Pac.  597. 

Thus,  complaint  failing  to  allege 
that  the  property  in  controversy  is 
within  the  county  in  which  the 
justices'  court  is  sitting,  the  court 
acquires  no  jurisdiction. — Wood- 
bury V.  Henningsen,  11  Wash.  12, 
39  Pac.  243. 

Forcible  entry  and  unlawful 
detainer  is  within  jurisdiction  of 
justices'  court  on  the  question 
whether  the  relation  of  landlord 
and  tenant  existed. — Richmond  v. 
Superior  Court,  9  Cal.  App.  62,  98 
Pac.  57;  Hamill  v.  Bank  of  Clear 
Creek  County,  22  Colo.  384,  45  Pac. 
411. 

— Being  a  possessory  action,  title 
is  not  involved  and  justice  can  not 
certify. — Armour  Packing  Co.  v. 
Howe,  62  Kan.  587,  64  Pac.  42; 
Wideman  v.  Taylor;  63  Kan.  884, 
65  Pac.  664;  Sheeby  v.  Flaherty,  8 
Mont.  365,  20  Pac.  687;  Patton  v. 
Balch,  15  N.  M.  276,  106  Pac.  3S8; 
:McDonald  v.  Stiles,  7  Okla.  327,  54 
Pac.  487;  Duffey  v.  Mix,  24  Ore. 
265,  33  Pac.  807;  Jenkins  v.  Jeff- 
rey, 3  Wyo.  669,  27  Pac.  186. 

But  where  the  action  is  by  ven- 
dor against  vendee  who  made  de- 
fault, justices'  court  has  no  juris- 
diction in  Oklahoma. — Smith  v. 
Kirchner,  7  Okla.  166,  54  Pac.  439. 


131 


t'h.  VII.]  TITLE,   ETC.,   TO   REAL  PROPERTY.  §  116 

void."*  But  a  Justices '  Court  has  jurisdiction  of  an  ordi- 
nary trespass  to  real  property,  when  the  plaintiff  can 
establish  his  right  without  being  obliged  to  establish  his 
title  to  the  property.^  And  where  the  pleadings  do  not 
show  upon  their  face  that  the  title  or  possession  of  prop- 
erty is  necessarily  involved,  but  only  that  it  may  contin- 
gently become  involved,  the  justice  of  the  peace  has  juris- 
diction to  try  the  cause  and  to  render  a  final  judgment. 
If,  however,  it  appears  that  the  predicted  contingent 
events  actually  occur  on  the  trial,  it  is  then  the  duty  of 
the  justice  to  decline  to  hear  e^ddence  touching  the  ques-'. 
tion  of  possession,  and  to  certify  the  case  to  the  Superior 
Court.''  When  a  Justices'  Court  once  obtains  jurisdic- 
tion over  the  subject-matter  of  an  action,  its  jurisdic- 
tion continues  until  the  action  is  legally  disposed  of  by 
such  court.'  And  a  Justices'  Court  has  no  power,  in  the 
absence  of  a  statute  expressly  conferring  it,  to  set  aside 
its  OMTi  judgment  duly  rendered,  either  upon  issue  joined, 
or  for  want  of  an  answer,  or  to  grant  a  new  trial,  or  leave 
to  answer. ■"  Under  the  Constitution  of  the  state  of  Wash- 
ington, justices  of  the  peace  have  no  jurisdiction  in  causes 
in  which  the  demand  or  value  of  the  property  in  contro- 
versy is  one  hundred  dollars  or  more.''  And  a  justice  of 
the  peace  has  no  jurisdiction  of  an  action  for  the  recovery 
of  a  sum  due,  and  interest  thereon,  arising  out  of  a  con- 
tract for  the  pajnnent  of  money,  when  the  total  amount  of 
the  claim  is  brought  in  excess  of  the  sum  of  one  hundred 
dollars,  by  the  addition  of  the  interest  thereon. ^*^   When- 

4  Murray  v.  Burris,  6  Dak.   170,  s  See  Heinlen  v.  Phillips,  88  Cal. 
42  N.  W.  25.  557,  26  Pac.  3G6;    Weeks  v.  Etter, 

5  State    ex    rel.    Launiz    v.    Jus-  ^1  Mo.  375;    State  v.  Boettger,  39 
tices-  Court.  29  Nev.  191,  87  Pac.  1;  ^^«-  ^^^P"  ^^4;   American  Building 


Sweek  v.   Galbreath,  11   Ore.   516, 
6  Pac.  220. 


&  L.  Assoc.  V.  Fulton,  21  Ore.  492, 
28  Pac.  636. 

9  Moore  v.   Perrott,   2   Wash.    1, 
<;  Hart    v.    Carnall-Hopkins    Co.,      25  Pac.  906. 
103  Cal.  132,  37  Pac.  19G.  lo  State    ex    rel.    Egbert    v.    Su- 

T  Southern   Pac.   R.   Co.   v.   Rus-      perior  Court,  9  Wash.  369,  37  Pac. 
sell,  20  Ore.  459,  26  Pac.  304.  489. 

135 


§  117  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

ever  the  act  reflating  the  jurisdiction  of  justices  of  the 
peace  provides  the  remedies  when  a  litigant's  rights  are 
not  respected  by  the  magistrate,  these  remedies  must  be 
taken  to  be  exclusive. ^^ 

§  117.  Priokity  of  jURiSDicTioisr — State  and  federaIj 
COURTS.  We  have  already  discussed  exclusive/  concur- 
rent,^  and  conflicting^  jurisdiction ;  and  have  seen  that,  as 
between  courts  of  concurrent  original  jurisdiction,  the 
court  which  first  takes  cognizance  of  a  controversy  is 
entitled  to  retain  jurisdiction  to  the  end  of  the  litigation, 
and  incidentally  to  take  possession  and  control  of  the 
subject-matter  of  the  suit  to  the  exclusion  of  all  interfer- 
ence from  other  courts  of  concurrent  jurisdiction,  whether 
state  or  federal.^  Thus,  when  a  Circuit  Court  of  the 
United  States  has  first  acquired  jurisdiction  of  the  per- 
sons and  subject-matter  of  an  action  before  the  com- 
mencement of  a  subsequent  action  in  a  state  court  between 
the  same  persons,  essentially  involving  or  depending  upon 
the  same  subject-matter,  the  judgment  of  the  Circuit 
Court,  no  matter  when  rendered,  whether  before  or  after 
the  date  of  judgment  in  the  state  court,  becomes  binding 
and  conclusive  as  to  that  subject-matter,  upon  all  parties 
and  upon  all  other  courts  and  tribunals  whatsoever.^ 

11  Wood  V.  Lake,  3  Colo.  App.  366,  21  L.  Ed.  287;  Pacific  Live 
284,  33  Pac.  80.  Stock  Co.  v.  Lewis,  241  U.  S.  446, 

1  See  ante,  §  61.  ^0  L.  Ed.  1096;   Young,  Ex  parte, 

„  „     '       ,      g  CO  209   U.   S.   162,   52    L.    Ed.   730,   14 

2  See,  ante,  §  62.  .         ^         „' 

Ann.  Cas.  764,  13  L.  R.  A.  (N.  S.) 

3  See,  ante,  §  63.  932^  28  Sup.  Ct.  Rep.  441;    Sharon 

4  See,  ante,  §  62,  footnotes  8  and  y  Terry,  36  Fed.  337;  Hatch  v. 
9.  See,  also,  Sharon  v.  Sharon,  84  Bancroft-Thompson  Co.,  67  Fed. 
Cal.  424,  430,  23  Pac.  1100;  Bate-  802;  Foley  v.  Hartley,  72  Fed.  570, 
man  v.  Grand  Rapids  &  I.  R.  Co.,  573;  Hughes  v.  Green,  75  Fed.  691; 
96  Mich.  441,  444,  56  N.  W.  28;  Gamble  v.  San  Diego,  City  of,  79 
State  ex  rel.  Spalding  v.  Benton,  Fed.  487,  500. 

12  Mont.  66,  76,  78,  29  Pac.  425;  See  further  cases  cited,  7  Rose's 

Thompson  v.  HoUaday,  15  Ore.  34,  Notes  to  U.  S.  Reps.,  2d  ed.,  pp. 
14   Pac.  725;    Oh   Chow  v.  Brock-      1107-1110. 

way,  21  Ore.  440,  28  Pac.  384 ;  Tay-  5  Sharon  v.  Sharon,  84  Cal.  424, 

lor  V.  Taintor,  83  U.  S.  (16  Wall.)       430,  23  Pac.  1100. 

13G 


/ 


CHAPTER  VIII. 

PROCEEDINGS   TO    OBTAIN    JUKISDICTION. 

§  118.  In  general. 

§  119,  Definition  of  "process." 

§  120.  Notice  requisite  to  "due  process  of  law" — ^In  general. 

§  121.  Citation — Definition  and  nature. 

§  122.  Service  and  return.  f 

<§  118.  In  general,.  In  all  judicial  proceedings  it  is 
necessary,  in  order  to  confer  upon  a  court  having  juris- 
diction over  the  subject-matter  statutory  jurisdiction  over 
the  person  or  the  res,  that  there  shall  be  served  upon  the 
party  or  parties  to  be  affected  some  kind  of  sufficient 
notice  of  the  proceeding  as  required  by  law,^  or  the  par- 
ties must  voluntarily  appear.-  Even  the  inherent  juris- 
diction of  a  court  to  set  aside  a  void  judgment  or  decree, 
does  not  authorize  such  court,  in  a  direct  action  or  pro- 
ceeding for  that  purpose,  to  do  so  until  after  the  statutory 
notice  has  been  given  to  the  party  in  whose  favor  the 
judgment  was  rendered  or  decree  entered,  and  he  given 
an  opportunity  to  be  heard.^    This  is  unquestionably  the 

1  Litchfield's    Appeal,    22    Conn.  v.  Gates,  41  Ky.   (2  B.  Mon.)   453, 

127,  73  Am.  Dec.  662.     See  Lamar  38   Am.    Dec.   164;    Jones   v.   Com- 

V.  Gunter,  39  Ala.  324;  Hatchett  v.  mercial    Bank,    6    Miss.    (5    How.) 

Billingslea,  65  Ala.  16;  Flint  River  43,  35  Am.  Dec.  419;  Hauswirtli  v. 

Steamboat  Co.  v.  Roberts,  2  Fla.  Sullivan,  6  Mont.  203,  9  Pac.  798. 
102,  48   Am.   Dec.  178;    Dorden  v.  See   note   51    Am.    Dec.   395,    54 

Lines,  2  Fla.  569;  Purviance  v.  Ed-  Am.  St.  Rep.  246. 
wards,  17  Fla.  140;    State  ex  rel.  Want  of  service  of  process,  held 

Andreu  v.   Canfield    (dis.   op.),  40  not    to    be    ground    for    enjoining 

Fla.  36,  42  L.  R.  A.  72,  23  So.  591;  judgment  in  Colson  v.  Leitch,  110 

Flint  River  Steamboat  Co.  v.  Fos-  111.  504. 

ter,   5  Ga.   194,  48   Am.   Dec.   248;  2  As    to    appearance,    see,    post. 

Weaver  v.  Webb,  3  Ga.  App.  726,  §§  255  et  seq. 

60  S.  E.  367:   Kenney  v.  Greer,  13  :!  Dwyer  v.  Nolan,  40  Wash.  459, 

111.  432,  54  Am.  Dec.  439;   Shaefer  Ul  Am.  St.  Rep.  919,  5  Ann.  Cas. 

137 


§  118  CODE  PLEADING  AND  PRACTICE.  fPt.  I, 

sound  doctrine  regarding  notice;  but  in  those  cases  in 
which  a  relation, — e.  g.,  the  marriage  relation, — and  prop- 
erty interests  are  affected,  a  distinction  is  sometimes 
made,  into  the  details  of  which  we  can  not  enter  in  this 
place.  Thus,  according  to  the  overwhelming  weight  of 
authority,^  in  the  case  of  a  fraudulent  decree  of  divorce 
procured  without  jurisdiction  over  the  person  of  the  de- 
fendant by  reason  of  the  want  of  the  service  of,  or  a 
defective  service  of  summons,  the  decree  may  be  set  aside 
in  a  direct  proceeding  for  that  purpose  after  the  death  of 
the  plaintiff  and  when,  in  the  nature  of  the  case,  it  is 
impossible  to  serve  the  judgment-plaintiff  with  notice  of 
the  proceeding,^  for  the  reason,  seemingly,  that  other  in- 
terests— property  interests — are  affected,  and  the  rights 
and  interests  of  parties  living,  and  possibly  not  parties  to 
the  action,  are  affected  by  such  decree  of  divorce.*^  This 
is  on  the  well-established  principle  that  equity  will  re- 
strain the  enforcement  of  a  judgment  or  decree  procured 
by  fraud,'^  or  where  any  fact  exists  clearly  showing  that 

890,  1  L.  R.  A.  (N.  S.)  551,  82  Pac.  5  Authorities  numerous,  and  it  is 

746  not  necessary  to  cite  them  here  as 

Inherent    jurisdiction    is    not    a  they  are  fully  collected  in  5  Ann. 

loose,     arbitrary     and     unlicensed  Cas.   892,  1   L.   R,  A.    (N.  S.)    551. 

jurisdiction  that  the  court  can  ex-  57  L.  R.  A.  583. 

ercise    without   restraint,    untram-  6  See,  among  other  cases,  Isreal 

meled    by   the   observance   of   the  v.  Arthur,  6  Colo.  85. 

methods  prescribed  by  law;    it  is  t  Hempstead  v.  Watkins,  6  Ark. 

simply  jurisdiction,  and  no  more. —  317,  42  Am.  Dec,  714;   Litchfield's 

Dwyer  v.  Nolan,  ante.  Appeal,  22  Conn.  127,  73  Am.  Dec. 

Review  after  death  of  party  662;  Pearce  v.  Chastain,  3  Ga.  226, 
stands  on  another  ground,  it  46  Am.  Dec.  423;  State  ex  rel.  Gar- 
seems.  See  Isreal  v.  Arthur,  6  ber  v.  Matley,  17  Neb.  564,  24 
Colo.  85;  later  appeals  of  same  N.  W.  200;  Lockwood  v.  Mitchell, 
case  in  7  Colo.  5,  1  Pac.  438,  15  19  Ohio  448,  53  Am.  Dec.  438;  Con- 
Colo.  147,  22  Am.  St.  Rep.  381,  10  way  v.  Duncan,  28  Ohio  St.  102; 
L.  R.  A.  693,  25  Pac.  81,  18  Colo.  Dowdell  v.  Goodwin,  22  R.  I.  287, 
158,  22  Pac.  68;  writ  of  error  dis-  84  Am.  St.  Rep.  842,  51  L.  R.  A. 
missed,  152  U.  S.  355,  38  L.  Ed.  873,  4  Atl.  693;  Bank  of  Tennessee" 
474,  14  Sup.  Ct.  Rep.  585.  v.  Patterson,  27  Tenn.  (8  Heniph.) 

4  All  of  the  authority,  so  far  as  363,  47  Am.  Dec.  618;  Williams  v. 

the  author  is  aware,  except  Dwyer  Pile,  104  Tenn.  273,  56  S.  W.  833; 

V.  Nolan,  already  cited.  Emerson  v.  Udall,   13  Vt.   477,  37 

138 


ch.  VIII.] 


PROCESS   DEFINED. 


§119 


it  would  be  against  conscience  to  execute  such  judgment 
or  decree  f  as  where,  by  mistake  or  fraud,  one  has  gained 
an  unfair  advantage  whicli  would  operate  to  make  a  court 
of  law  an  instrument  of  injustice." 

§  119.  Definition  of  "process."  In  its  broadest  sense, 
the  word  ** process"  comprehends  all  proceedings  to  the 
accomplishment  of  an  end,  including  judicial  proceed- 
ings.^ In  a  narrower  sense,  in  law,  it  means  a  *Svrit"- 
issued  by  some  court  or  officer  exercising  judicial  powers,^^ 
and  embraces  all  the  steps  in  the  progress  of  a  cause,^  the 
words  "process"  and  "writ"  being  synonymous  and  used 
interchangeably.^  But  as  used  herein  the  word  process  is 
synonymous  with  the  word  "summons,"  and  signifies  the 


Am.  Dec.  604;  Bancroft  v.  Grover, 
22  Wis.  463,  99  Am.  Dec.  195. 

Fraud  being  mere  falsity  of 
claim  or  proof,  equity  will  not  re- 
lieve.— Furbush  v.  Collingwood,  13 
R.  I.  720. 

Perjured  testimony  admitted, 
not  ground  for  setting  aside  judg- 
ment on  ground  of  fraud. — Camp 
V.  Ward,  69  Vt.  286,  60  Am.  St. 
Rep.  929,  37  Atl.  747. 

s  Crofts  V.  Dexter,  8  Ala.  767,  42 
Am.  Dec.  666;  Brooks  v.  Twitchell, 
182  Mass.  443,  94  Am.  St.  Rep.  662, 
65  N.  E.  843;  Hibbard  v.  Eastman, 
47  N.  H.  507,  93  Am.  Dec.  467; 
Adams  v.  Adams,  51  N.  H.  388,  12 
Am.  Rep.  134. 

False  return  of  sheriff  and  con- 
sequent want  of  the  statutoiy  no- 
tice to  give  the  court  jurisdiction. 
—Gregory  v.  Ford,  14  Cal.  138,  73 
Am.  Dec.  639. 

Haste  and  inadvertence  by  Su- 
l)reme  Court  leading  to  wrong 
decision,  execution  of  judgment 
can  not  be  enjoined. — Pettes  v. 
Bank  of  Whitehall,  17  Vt.  435. 

Void  judgment  may  be  enjoined, 
though    appearing    regular   on    its 

1 


face. — Chambers  v.  King  Wrought 
Iron  Bridge  Mfrg.,  16  Kan.  270. 

9  Delany  v.  Brown,  72  Vt.  344, 
47  Atl.  1067. 

1  McKenna  v.  Cooper,  79  Kan. 
847,  101  Pac.  662. 

2  Carey  v.  German  American 
Ins.  Co.,  84  Wis.  80,  36  Am.  St. 
Rep.  907,  20  L.  R.  A.  267,  54  N.  W. 
18.  See  Savage  v.  Oliver,  100  Ga. 
636,  36  S.  E.  54;  Hinkley  v.  St. 
Anthony  Falls  Water  Power  Co.,  9 
Minn.  55,  60;  People  ex  rel.  John- 
son v.  Nevins,  1  Hill  (N.  Y.)  154, 
169-70;  State  v.  Shaw,  73  Vt.  149, 
50  Atl.  863. 

3  Tweed  v.  Metcalf,  4  Mich.  578, 
579,  588. 

4  Hanna  v.  Russell,  12  Minn.  80, 
86;  Wolf  V.  McKinley,  65  Minn. 
156,  68  N.  W.  2;  Tipton  v.  Cordo- 
van, 1  N.  M.  383,  385;  Perry  v. 
Lorillard  Fire  Ins.  Co.,  6  Lans. 
(N.  Y.)  201,  204;  affirmed,  61  N.  Y. 
214,  19  Am.  Rep.  272;  United 
States  v.  Murphy,  82  Fed.  893,  899. 

^>  Carey  v.  German  American  Ins. 
Co.,  84  Wis.  80,  36  Am.  St.  Rep. 
907,  20  L.  R.  A.  267,  54  N.  W.  18. 
See  Original  Writs,  In  re,  37  Pa. 


39 


§120 


CODE  PLEADING  AND  PRACTICE. 


[Pt.I, 


writ  by  means  of  which  the  defendant  is  brought  into 
court  to  answer.^ 

<§.  120.  Notice  requisite  to  ' '  due  process  of  law  ' ' — Ix 
GENERAL.  It  is  a  general  rule  of  law  that  wiiatever  puts 
on  inquiry,  where  inquiry  becomes  a  duty,  amounts  to 
notice,  provided  a  knowledge  of  the  requisite  facts  would 
be  obtained  by  the  exercise  of  ordinary  diligence.^  This 
is  the  fundamental  rule  of  the  doctrine  of  notice  generally, 
but  has  no  application  to  administrative  and  remedial 
process,  the  notice  required  in  which  is  quite  another  kind 
of  notice,  and  a  distinctive  or  special  notice  is  required  to 
be  given  under  the  constitutional  guarantees  of  "due 
process"  and  ''the  law  of  the  land."  In  judicial  pro- 
ceedings, as  Judge  Cooley  has  well  remarked,-  the  law 
of  the  land  requires  a  hearing  before  condemnation,  and 
a  judgment  before  dispossession.^ 


Co,  Ct.  Rep.  525,  19  Pa.  Dist.  Rep. 
883. 

6  Neale  Millard  Co.  v.  Owens, 
115  Ga.  959,  42  S.  E.  266;  Daven- 
port, City  of,  V.  Bird,  34  Iowa  524, 
527;  McKenna  v.  Cooper,  79  Kan. 
847,  101  Pac.  662;  Fitzpatrick  v. 
New  Orleans,  City  of,  27  La.  Ann. 
457;  Vinson  v.  St.  Louis  &  S.  F. 
R.  Co.,  108  Mo.  588,  32  Am.  St.  Rep. 
624,  18  S.  W.  286;  Philadelphia, 
City  of,  V.  Campbell,  11  Phila. 
(Pa.)  163,  164;  Rich  v.  Trimble,  2 
Tyl.   (Vt.)   349. 

1  See,  among  many  other  cases. 
Hood  V.  Fahenstock,  1  Pa.  St.  440, 
44  Am.  Dec.  147;  Wilson  v.  McCul- 
lough,  23  Pa.  St.  440,  62  Am.  Dec. 
347. 

2  Cooley's  Const.  Lim.,  4th  ed., 
p.  441. 

3  ALA.— Zeigler  v.  South  &  N.  A. 
R.  Co.,  58  Ala.  594;  Wilburn  v. 
McCalley,  65  Ala.  436.  CAL.— Hey 
Sing  Jeck  v.  Anderson,  57  Cal,  251, 
40  Am.  Rep.  115;  Modern  Loan  Co. 


V.  Police  Court,  12  Cal.  App.  589, 
108  Pac.  59.  COLO.— Newman  v. 
People,  23  Colo.  300,  307,  47  Pac. 
278.  HAWAII— Wing  Wo  Chan  & 
Co.  V.  Hawaiian  Government,  7 
Hawaii  503.  ILL.— Polar  Wave  Ice 
&  Fuel  Co.  V.  Alton  Branch  Hu- 
mane Soc,  155  111.  App.  315.  IND.— 
Loesch  V.  Koehler,  144  Ind.  278,281, 
35  L.  R.  A.  682,  41  N.  E.  326,  43 
N.  E.  129.  IOWA— Mason  v.  Mes- 
senger, 17  Iowa  267.  KY.^Var- 
den  V  Mount,  78  Ky.  86,  39  Am. 
Rep.  208.  MICH.— Parsons  v.  Rus- 
sell, 11  Mich.  113,  83  Am.  Dec.  728. 
MO.— Clark  v.  Mitchell,  64  Mo.  564. 
NEB.— McConnell  v.  McKillip,  71 
-Neb.  718,  115  Am.  St.  Rep.  614,  65 
L.  R.  A.  610,  99  N.  W.  508.  N.  J.— 
Berry  v.  De  Maris,  76  N.  J.  L.  310, 
70  Atl.  340.  N.  Y.— People  ex  rel. 
Witherbee  v.  Essex  County  Super- 
visors, 70  N.  Y.  228.  N.  C— Dan- 
iels v.  Homer,  139  N.  C.  253,  3 
L.  R.  A.  (N.  S.)  997.  51  S.  E.  1004. 
PA.— Ervine's  Appeal,   16   Pa.   St. 


140 


ch.  VIII.] 


CHANGE  OP  REMEDIAL  PROCESS. 


§120 


Administrative  and  remedial  process  may  he  changed 
from  time  to  time  by  the  legislature,'*  but  only  with  due 
regard  to  the  landmarks  of  the  law,  established  for  the 
protection  of  the  citizen.  Notice  of  a  proceeding  to  affect 
a  person  or  a  thing,  duly  given  actually  or  constructively, 
is  essential  to  the  jurisdiction  of  a  court  over  the  person 
or  the  thing.  As  it  has  been  admirably  put  in  an  early 
New  York  case,^  notice  of  some  kind  is  the  vital  breath  to 
animate  judicial  jurisdiction  over  the  person;  it  is  the 
primary  element  of  the  application  of  the  judicatory 
power ;  it  is  the  essence  of  a  cause ;  without  it  there  can  be 
no  parties,  and  without  parties,  there  may  be  the  form  of 
a  judgment,  but  no  judgment  obligating  the  person.*^ 


256,  55  Am.  Dec.  599.  TENN.— 
Vanzant  v.  Waddell,  10  Tenn.  (2 
Yerg.)  260;  Bank  of  the  State  v. 
Cooper,  10  Tenn.  (2  Yerg.)  599,  24 
Am.  Dec.  517.  WIS.— Lenz  v. 
Charlton,  23  Wis.  478.  FED.— Pen- 
noyer  v.  Neff,  95  U.  S.  714,  733,  24 
L.  Ed.  565,  572,  affirming  3  Sawy. 
274,  Fed.  Cas.  No.  10083;  J.  W. 
French,  The,  5  Hughes  429,  13 
Fed.  916;  San  Mateo  County  v. 
Southern  Pac.  R.  Co.,  8  Sawy. 
238,  13  Fed.  722, 

See  note  24  Am.  Dec.  539, 
4  State   ex   rel.   Andreu  v.   Can- 
field,  40  Fla,  36,  42  L.  R.  A.  72,  23 
So.  591. 

Error  proceedings  is  not  a  new 
and  original  action  requiring  the 
same  strictness  of  service  of  no- 
tice upon  the  defendant  as  in  the 
institution  of  an  original  action  in 
a  court  of  first  instance;  and  legis- 
lature may  rightfully  provide  that 
clerk's  record  of  such  proceeding 
shall  constitute  sufficient  notice. — 
State  ex  rel.  Andreu  v.  Canfield, 
ante;  State  ex  rel.  Burbridge  v. 
Call,  41  Fla.  459,  26  So.  1016;  State 


ex  rel.  Lamar  v,  Jacksonville  Ter- 
minal Co.,  41  Fla.  373,  27  So.  225. 

5  Black  V.  Black,  4  Bradf.  (N.  Y.) 
174,  205. 

6  ALA. — Lamar  v.  Gunter,  39 
Ala,  324;  Hachett  v.  Billingslea, 
65  Ala.  16.  ARK.— Cheatham,  Ex 
parte,  6  Ark.  531,  44  Am,  Dec  525. 
CONN.— Wood  v.  Watkinson,  17 
Conn.  500,  44  Am.  Dec.  562;  Dur- 
yee  v.  Hale,  31  Conn.  217.  FLA.— 
Flint  River  Steamboat  Co.  v.  Rob- 
erts, 2  Fla.  102,  48  Am.  Dec.  178. 
GA. — Flint  River  Steamboat  Co.  v. 
Foster,  3  Ga.  194,  48  Am.  Dec.  248; 
Bearing  v.  Bank  of  Charleston,  5 
Ga.  497,  48  Am.  Dec.  300;  Parish  v. 
Parish,  32  Ga.  653;  Werner  v. 
Webb,  3  Ga.  App.  726,  60  S.  E.  367. 
ILL. — Swiggart  v.  Harber,  5  111.  (4 
Scam.)  364,  39  Am.  Dec.  418;  Ken- 
ney  v.  Greer,  13  111.  432,  54  Am. 
Dec.  439;  White  v.  Jones,  38  111. 
159.  KY.— Reading  v.  Price,  26  Ky, 
(3  J.  J.  Marsh.)  61,  19  Am.  Dec. 
162;  Williams  v.  Preston,  26  Ky. 
(3  J.  J.  Marsh.)  600,  20  Am,  Dec. 
179;  Shaefer  v.  Gates,  41  Ky.  (2  B. 
Mon.)   453,  38  Am.  Dec.  164;   Rob- 


141 


§121 


CODE  PLEADING  AND  PRACTICE. 


[Pt.I, 


§  121.  Citation — Definition  and  nature.  A  citation, 
in  its  general  character,  is  a  summons^  to  appear,-  and  in 
the  civil  law, — e.  g.,  in  Louisiana  practice  at  the  present 
time, — and  in  ecclesiastical  courts,  means  the  original 
process  by  Avhich  the  defendant  is  notified  to  appear  and 
answer  in  an  action.^  It  has  been  adopted  in  the  pro- 
cedural codes  from  the  canon  and  ci\dl  law,^  being  a  writ 
of  process  issued  out  of  a  court  of  competent  jurisdiction 
commanding  the  person  therein  named  to  appear  on  a  day 
specified  and  at  a  place  designated,^  and  do  a  thing  therein 
named  or  show  cause  for  abstaining  from  so  doing.**  In 
California,  a  citation  is  issued  by  the  clerk  of  the  court 


erts  V.  Stowers,  70  Ky.  (7  Bush) 
295.  ME. — Penobscot  R.  Co.  v. 
Weeks,  52  Me.  456.  MICH.— Steen 
V.  Steen,  25  Mich.  505;  Tyler  v. 
Peatt,  30  Mich.  63.  MISS.— Jones 
V.  Commercial  Bank,  6  Miss.  <5 
How.)  43,  35  Am.  Dec.  419.  MO.— 
Roach  V.  Burnes,  33  Mo.  319.  N.  Y. 
— Starbuck  v.  Murray,  5  Wend. 
148,  21  Am.  Dec.  172.  OHIO— Pel- 
ton  V.  Platner,  13  Ohio  209,  42  Am, 
Dec.  197.  FED.— Harris  v.  Harde- 
man, 55  U.  S.  (14  How.)  334,  14 
L.  Ed.  444;  Windsor  v.  McVeigh, 
93  U.  S.  274,  277,  23  L.  .Ed.  914, 
916;  Settlemier  v.  Sullivan,  97 
U.  S.  444,  24  L.  Ed.  1110;  Hale  v. 
Finch,  104  U.  S.  261,  26  L.  Ed.  732; 
Farmers'  Loan  &  Trust  Co.  v.  Mc- 
Kinney,  6  McLean,  1,  Fed.  Cas.  No. 
4667;  Burnham  v.  Webster,  1 
Woodb.  &  M.  172,  Fed.  Cas.  No. 
2179;  Sumner  v.  Marcy,  3  Woodb. 
&  M.  105,  Fed.  Cas.  No.  13609. 

See,  also,  notes  11  Am.  St.  Rep. 
821,  50  Am.  St.  Rep.  737,  50  L.  R.  A. 
577. 

Judgment  without  service  or  ap- 
pearance does  not  bar  action  on 
original   demand   at   residence   of 


debtor. — Whittier    v.     Mendell,     7 
N.  H.  252. 

Jurisdiction  of  foreign  court 
whose  judgment  is  attacked  in 
court  of  another  state,  is  always 
open  to  inquiry. — Fisher  v.  Field- 
ing, 67  Conn.  91,  52  Am.  St.  Rep. 
270,  32  L.  R.  A.  236,  34  Atl.  714. 

1  Bacigalupo  v.  Superior  Court, 
108  Cal.  92,  40  Pac.  1055. 

See  Focha  v.  Focha's  Estate,  8 
Cal.  App.  577,  97  Pac.  322. 

2  State  V.  McCann,  67  Me.  372, 
374. 

3  Leavitt  v.  Leavitt,  135  Mass. 
191,  193. 

4  State  V.  McCann,  67  Me.  372, 
374. 

5  As  to  California  citation  and 
its  contents,  see  Kerr's  Cyc.  Cal. 
Code  Civ.  Proc,  §  1707;  Church's 
Probate  Law  and  Practice,  vol.  2, 
p.  1459,  §  814. 

For  form  of  citation,  see  Jury's 
Adjudicated  Forms  of  Pleading 
and  Practice,  vol.  2,  pp.  1807-1809, 
and  Church's  Probate  Law  and 
Practice,  vol.  2,  p.  1460. 

0  Johns  V.  Phoenix  Nat.  Bank,  6 
Ariz.  290,  56  Pac.  725, 


142 


ch.  VIII,]  CITATION — SERVICE  AND  RETURN.  §  122 

upon  application  of  any  party/  or  upon  order  of  the  court. 
In  actual  practice  in  the  courts  in  this  country — outside 
of  Louisiana, — however,  it  is  seldom  if  ever  used  to  in- 
au<;urate  jurisdiction  on  the  part  of  the  court,^  but  is 
employed  in  connection  \\dth  some  act  required  to  be  done 
in  a  cause  over  which  the  court  already  has  jurisdiction ; 
e.  g.,  in  proceedings  for  the  accounting  of  a  guardian  or 
athninistrator  in  a  cause  already  before  the  court ;  or  in 
proceedings  to  sell  property  of  a  decedent,  or  of  an  in- 
fant ;  or  in  proceedings  on  appeal,**  and  the  like.  In  pro- 
bate proceedings,  the  judge  may  cite  a  person  suspected 
of  embezzling  or  stealing  the  estate  of  a  decedent,  whose 
estate  is  under  course  of  administration,  to  appear  and 
answer.^**  In  an  election  contest,  a  citation  is  issued  to 
the  respondent,^^  but  it  is  not  the  citation  or  its  service 
which  inaugurates  jurisdiction  on  the  part  of  the  court 
in  such  a  proceeding.  In  all  the  cases  above  mentioned 
the  jurisdiction  of  the  court  has  already  been  inaugurated 
imd  attached  to  a  case  in  which  a  citation  was  issued.  The 
s:nne  is  true  in  the  case  of  a  citation  to  a  party  to  show 
reason  why  he  should  not  be  punished  as  for  a  contempt 
of  court  for  disobeying  an  injunction. 

§  122.    Service  and  return.     A  citation  is  to  be 

served  and  returned  in  the  same  manner  as  a  summons, 
treated  in  the  following  chapters.  The  citation  itself  is 
the  important  basic  legal  fact  upon  which  the  validity  of 
an  order  or  a  judgment  rests,  and  its  proper  service  is 
essential  to  give  the  defendant  notice  of  the  proceedings 

7  See  Kerr's  Cyc.  Cal.  Code  Civ.  ;>  Cohens  v.  Virginia,  19  U.  S.  (6 
Proc,  §  1708;  Church's  Probate  Wheat.)  264,  410,  5  L.  Ed.  257,  292. 
Law  and  Practice,  vol.  2,  p.  1461,  j,  ^^^^,^  ^^.^  ^^^  ^^^^  ^.^ 
§  817. 

8  "Citation"  can  not  be  held  to 
mean  the  original  process  of  sum- 
mons by  means  of  which  an  action,  537-540.     See,  also.  Leavitt  v.  Lea- 
-e.  g.,  of  divorce,-is  commenced,  ^i",  135  Mass.  191.  193. 
—Leavitt  V.  Leavitt,  135  Mass.  191,  m  Kerr's    Cyc.    Cal.    Code    Civ. 
193.  Proc,  §§  1119,  1124. 

143 


Proc,  §§  1459,  1460;   Church's  Pro- 
bate  Law  and  Practice,  vol.  1,  pp. 


§122 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


and  to  confer  upon  the  court  jurisdiction  to  make  the 
order  or  enter  the  judgment.^  But  the  service  of  a  cita- 
tion may  be  accepted^  or  waived^  by  the  party  to  be 
affected  by  the  proceedings,  and  such  acceptance  or 
waiver  will  bind  him."*  Where  service  is  not  accepted  or 
waived,  the  citation  must  be  served  and  returned^  in  the 
same  manner  as  a  summons  f  and  where  the  party  to  be 
served  has  left  the  state,  or  resides  outside  of  the  state, 
so  that  a  personal  service  of  the  citation  can  not  be  made 
upon  him,  the  service  must  be  made  by  publication  of  the 
citation."  The  citation  is  a  matter  distinct  and  apart  from 
the  return  of  the  officer  thereon,  or  from  the  proof  of  ser- 
Yice  thereof;  it  may  be  perfectly  legal,  while  the  return 
or  the  proof  of  service  fails  to  make  a  recital  of,  or  allege, 
all  the  facts  regarding  all  the  things  the  sheriff,  or  the 
person  making  the  service,  is  required  to  do ;  or  the  return 
or  proof  of  service  may  be  regular  and  unobjectionable 
in  form,  and  yet  the  fact  may  be  that  no  legal  service  was 
made,^ — the  same  as  in  the  case  of  a  summons. 


1  See,  ante,  §§  118,  120. 

2  As  to  acceptance  or  acknowl- 
edgment of  service  of  citation 
(summons),  see,  post,  §§  242  et 
seq. 

For  form  of  acknowledgment  of 
citation,  see  Jury's  Adjudicated 
Forms  of  Pleading  and  Practice, 
vol.  2,  p.  1808. 

3  As  to  waiver  of  service  of  cita- 
tion (summons),  see,  post,  §§  250 
et  seq. 

4  See  Spencer  v.  Houghton,  68 
Cal.  82,  8  Pac.  679. 

5  For  form  of  certificate  of  cita- 
tion, see  Cliurch's  Probate  Law 
and  Practice,  vol.  2,  p.  1462,  §  819. 

For  form  of  proof  of  service  of 


citation,  see  Church's  Probate  Law 
and  Practice,  voL  2,  p.  1462,  §  820 
c  See  Kerr's  Cyc.  Cal.  Code  Civ 
Proc.,  §§  1709-1711;  Church's  Pro 
bate  Law  and  Practice,  vol.  2,  pp 
1461-1463. 

7  Spencer  v.  Houghton,  68  Cal 
82,  8  Pac.  679;  Trumpler  v.  Cotton 
109  Cal.  250,  255,  41  Pac.  1033. 

As  to  service  by  publication,  see 
post,  §§  193  et  seq. 

Money  judgment  can  not  be  en 
tered  on  such  service  by  publica 
tion  against  guardian  who  has  left 
the  state. — Michigan  Trust  Co.  v, 
Ferry,  99  C.  C.  A.  221,  175  Fed 
674. 

8  Baham  v.  Stewart  Bros.  &  Co., 
109  La.  999,  34  So.  54. 


144 


CHAPTER  IX.  .      • 

peoceedings  to  obtain  jurisdiction the  summons. 

1.  Introductory. 

§  ,123.    In  general. 

§  124.    Amendment  of  complaint. 

§  125.    Defective  summons — Cured  by  complaint  when. 

§  126.    Alias  and  pluris  summonses. 

2 .  Nature  and  Style  op  Summons. 

§  127.    In  general. 

§  128.    Style  of  process  or  summons. 

3.  Form  and  Contents  of  Summons. 

§  129.    Contents  of  summons — 1.  Names  of  parties  to  the 
action,  etc. 

§  130. Several  persons  parties. 

§  131. Under  Practice  Act,  §  54. 

§  132. Where  plaintiff  ignorant  of  true  name. 

§  133. Where  party  sues  or  is  sued  in  represen- 
tative character. 

§  134. Where  new  parties  are  brought  in. 

§  135. Where  personal  representative  brought  in. 

§  136.   2.  Direction  to  defendant  to  appear  and  answer. 

§  137.   3.  Notice  of  relief  to  be  demanded. 

§  138. In  action  on  contract  for  money  or  dam- 
ages. 

§  139. In  all  other  actions. 

§  140. In  actions  in  ejectment. 

§  141. In  actions  for  specific  relief. 

§  142. Alternative  relief — Wrong  relief. 

§  143.    Amending  summons. 

1.   Introductory, 

%  123.  In  general,.  Wliere  a  party  defendant  to  an 
action  does  not  volimtarily  appear  and  submit  himself  to 
the  jurisdiction  of  the  court,  process  must  be  issued,  as 

I  Code  PI.  and  Pr.— 10  145 


§§124,125  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

directed  by  law,  requiring  such  appearance,  and  must  be 
duly  served  and  returned;  in  both  issuance  and  service 
of  the  summons,  there  must  be  a  substantial  compliance 
with  the  requirements  of  the  Code.^  Where  a  person  is 
once  duly  and  regularly  before  the  court,  he  is  there  for 
every  purpose  connected  with  the  cause,  and  is  bound  to 
take  notice  of  all  the  steps  and  proceedings  in  the  cause. 
Thus,  in  an  action  to  foreclose  a  mortgage,  the  defendant 
is  bound  to  take  notice  of  a  cross-complaint  asking  the 
foreclosure  of  a  second  mortgage;  the  issuance  and  serv- 
ice of  a  summons  on  the  cross-complaint  is  unnecessary.- 

■§  124.  Amendment  of  complaint.  An  amendment  to 
a  complaint,  after  service  of  summons,  wdiere  such  amend- 
ment is  merely  as  to  a  formal  matter,  does  not  require  a 
new  service  of  process  on  a  defendant  who  has  not  ap- 
peared.^ The  filing  of  a  supplemental  complaint  is 
neither  an  amendment  nor  a  new  cause  of  action,  and 
does  not  require  a  new  service  of  process  on  defendant, 
where  the  supplemental  complaint  was  filed  in  open  court 
and  a  copy  served  upon  the  attorney  of  record.-  But  an 
amendment  which  introduces  a  new  cause  of  action,  or 
enlarges  the  amount  of  the  demand  for  which  judgment 
will  be  rendered  on  default,  requires  the  service  of  a  new 
process  on  a  non-appearing  defendant;^  where  the  orig- 
inal service  was  by  publication,  there  must  be  a  new  pub- 
lication.^ 

« 

§  125.  Defective  summons  —  Cured  by  complaint 
WHEN.  The  general  rule  is  that  the  summons  must  con- 
tain all  the  matters  the  statute  declares  to  be  requisite, 

1  Gulp,  In  re,  2  Cal.  App.  70,  83  '-•  United    States   v.    Rio    Grande 

Pac.  89.  Dam  &  Irr.  Co.,  13  N.  M.  386,  85 

li  Lawson  v.  Rush.  80  Kan.  262,  Pac.  393;   affirmed,  215  U.  S.  266, 

101  Pac.  1009.  54  L.  Ed.  190,  30  Sup.  Ct.  Rep.  97. 

1  Manspeaker    v.    Bank    of  .  To-  ">  Schuttler  v.  King,  12  Mont.  149, 

peka,    4    Kan.    App.    768,    46    Pac.  30  Pac.  25. 

1012;  White  V.  Hinton,  3  Wyo.  753,  4  Wood    v.    Nicholson,    43    Kan. 

17  L.  R.  A.  66,  30  Pac.  953.  4G1,  23  Pac.  587. 

146 


cl).  IX.]  DEFECTIVE  SUMMONS,    CURE  OF.  §  125 

because  wliere  the  law  expressly  directs  that  the  process 
shall  be  in  a  specified  form,  and  contain  designated  mat- 
ter, such  provision  is  mandatory,^  and  a  failure  to  comply 
with  the  requirements  of  the  law  in  that  respect  will  ren- 
der the  process  void.^  But  in  those  cases  in  which  a  copy 
of  the  complaint  is  served  with  the  summons,  and  the 
facts  required  to  be  inserted  in  but  omitted  from  the  sum- 
mons are  supplied  by  the  complaint,  the  defects  in  the 
summons  are  cured  by  the  complaint,  particularly  under 
a  constitutional  provision  requiring  appellate  courts  to 
affirm  a  correct  judgment,  notwithstanding  any  error  com- 
mitted during  the  trial. ^  The  copy  of  the  complaint 
served  with  the  copy  of  the  summons  should  be  deemed 
a  part  of  the  summons  or  notice  to  the  defendant,  and 
should  be  read  with  the  summons  to  explain  any  apparent 
ambiguity.*  In  those  cases  in  which  land  is  involved 
in  the  cause  of  action  and  is  the  subject  of  litigation,  a 
description  of  the  land  in  the  summons  as  "the  land  de- 
scribed in  the  complaint,"  the  complaint  is,  by  reference, 
made  a  part  of  the  summons.^ 

1  See,  post,  §  129,  footnote  6.  possession    the    defendant    could 

2  Smith  V.  Aurich,  6  Colo.  388.  not   have    been    misled    as   to    the 
See  Lyman  v.  Milton,  44  Cal.  630.      nature  of  the  relief  demanded  or 

3  First  Nat.  Bank  of  Joseph  v.  as  to  the  court  in  which  the  pro- 
Rush,  64  Ore.  35,  43  L.  R.  A.  ceeding  was  instituted.  Conced- 
(N.  S.)  138,  127  Pac.  780,  129  Pac.  ing  the  slips  mentioned  are  errors, 
121.  they  are  not  such  errors  as  would 

See  note,  43  L.  R.  A.  (N.  S.)  substantially  affect  the  rights  of 
138-146.  the    appellant." — First    Nat.    Bank 

4  Id.;    Swift  V.   Meyers,  37   Fed.      v.   Rusk,   ante. 

37,    40.      See    Gagnato,    questions  r>  Calderwood  v.  Brooks,  28  Cal. 

discussed  in:   Chirk  v.  Palmer,  90  151;    People    v.    Dodge,    104    Cal. 

Cal    504,   27  Pac.  375;    Behlow  v.  487,    490,    492,    38    Pac.    203.      See 

Smith,   91   Cal.    141,  27   Pac.    546;  King  v.  Blood,  41  Cal.  314. 

Kimball  v.  Castagnio,  8  Colo.  525,  Notice  of  motion   for  new  trial 

9  Pac.  488;    Higley  v.  Pollock,  21  "based    upon    a    statement    to    be 

Nev.   198,   27    Pac.   895;    Miller   v.  hereafter    filed,"    is    not    a    com- 

Zeigler,  3  Utah  17,  5  Pac.  518.  pliance  with  §  197  Nevada  Practice 

See,  also,  post,  §  129,  footnote  4.  Act    (Stats.    1869,    p.    226)    requir- 

"With   all    the    information    con-  ing  the  notice  to  "designate  gen- 

tained  in  these  two  papers  in  his  erally    the    grounds    upon    which 

M7 


§§126,  127  CODE  PLEADING   AND   PRACTICE.  [I't.  T, 

§  126.  Alias  and  pluris  summonses.  The  Californifi 
Code  of  Civil  Procedure/  and  a  similar  provision  is 
found  in  other  Codes  and  statutes,  provides  that  where  a 
summons  is  returned  without  being  served,  or  is  lost, 
upon  demand  of  the  plaintiff,  the  clerk  of  the  court  may 
issue  an  alias  summons-  ''in  the  same  form  as  the  orig- 
inal," which  provision  has  been  construed  to  mean  sim- 
ply that  the  alias  summons  must  conform  to  the  require- 
ments of  section  407  of  the  Code  of  Civil  Procedure,  and 
does  not  prohibit  the  insertion  in  an  alias  summons  of  the 
name  of  a  defendant  which,  through  clerical  error,  was 
omitted  from  the  original  summons.^  The  proviso  in 
section  408  of  the  Code  of  Civil  Procedure  relates  to  the 
service  of  the  original  summons  or  its  return  within  a 
year  of  its  issuing,  and  has  no  reference  to  parties 
brought  in  by  order  of  the  court  or  by  stipulation  of  par- 
ties.^ Service  on  defendant  of  an  alias  or  a  pluris  sum- 
mons, instead  of  the  original  summons,  does  not  render 
the  service  defective  or  void.^ 

2.    Nature  and  Style  of  Smnmons. 
§  127.    In  general.     Like  a  citation,  above  noted,*  a 
summons  is  a  command  to  appear,  and  its  object  is  to  put 

the  motion  will  be  made." — Street  Alias    summons     not    defective 

V.  Lemon  Mill  &  Min.  Co.,  9  Nev.  where    it    substantially    complies 

251,  253.  with  the  original. — Hill  v.  Morgan, 

It  is  scarcely  necessary  to  sug-  9  Idaho  718,  76  Pac.  323. 
gest  that  you  can  not  "incorporate  Motion  to  quash  summons  pend- 

by    reference"     something    which  ing,    defendant    not    required     to 

has  no  present  existence.  obey  a  second  or  alias  summons 

1  Kerr's  Cyc.  Cal.  Code  Civ.  correcting  defects  in  original,  the 
Proc,  §  408.  court     not    having    directed     the 

2  Where  not  served  or  returned,  issuance  of  the  alias  summons. — 
and  more  than  four  years  have  Harris  v.  Walter,  2  Colo.  App. 
elapsed  since  the  issuance  of  the  450,   31   Pac.  231. 

original   summons,  the  court  has  4  Bank    of    Venice    v.    Hutchin- 

no  power  to  issue  an  alias   sum-  son,    19    Cal.    App.    219,    125    Pac. 

mons. — White    v.    Superior   Court,  252. 

126  Cal.  245,  58  Pac.  450.  5  Roznik    v.    Becker,    68    Wash. 

::  Doyle    v.    Hampton,    159    Cal.  63,    122   Pac.    593. 

729,    116   Pac.    39.  i  See,  ante,  §  121. 

148 


ell.  IX.]  NATURE  AND  STYLE  OF  SUMMONS.  §  127 

the  defendant  upon  notice  of  the  demand  against  him, 
and  to  bring  him  into  court  at  the  time  specified  in  the 
summons.^  In  California  it  is  a  notice  to  defendant  that 
an  action  has  been  commenced  against  him,  informs  him 
who  has  commenced  the  action,  where  it  is  brought,  in 
what  court  it  is  brought,  the  relief  demanded,  and  that, 
if  he  fails  to  answer  within  ten  days,  or  in  such  other  time, 
depending  upon  where  the  summons  is  served,  default 
will  be  taken  against  him.  In  California  the  summons 
always  follows  the  complaint,  and  is  only  issued  after  the 
filing  of  a  complaint;  but  in  many  states  the  suimnons 
precedes  the  complaint,  and  the  issuance  of  it  is  the  first 
step  or  commencement  of  the  action ;  but  here  the  action 
is  commenced  by  ''filing  a  complaint"  in  the  court  where 
the  action  is  brought.^  This  filing  of  the  complaint  gives 
the  California  court  jurisdiction  of  the  cause,  but  not  of 
the  person  of  the  defendant;  the  latter  is  secured  by  the 
service  of  the  summons,  only.  The  summons  may  be 
issued  at  any  time  Avithin  one  year  after  filing  the  com- 
plaint;* but  after  the  expiration  of  one  year  the  clerk  is 
not  authorized  to  issue  a  summons  wdthout  an  order  of 
the  court ;  and  if  the  court  is  authorized  to  order  the  issu- 
ance of  a  summons  after  that  period,  the  exercise  of  the 

2  Sweeney  v.   Schultes,   19   Nev.  Dismissal    for    failure    to    serve 
53,  6  Pac.  44,  8  Pac.  768.                        and    return   within   three  years. — 

Paper  purporting  to  be  copy  of  Kerr's  Cyc.  Cal.   Code  Civ.  Proc, 

a  summons  fails  to  state  the  name  §  581,  subd.  7. 

of  the  plaintiff,  the  answer  day  is  Under  Colorado  Code  action  is 
not  dated,  and  does  not  have  the  commenced  by  issuance  of  a  sum- 
name  of  the  clerk  signed  thereto,  mons;  by  §32  it  is  provided  that 
and  no  indication  of  the  seal  cf  the  complaint  must  be  filed  within 
the  court  thereon,  is  insufficient  ten  days  after  issuance  of  sum- 
notice  to  give  the  court  jurisdic-  mons,  or  the  action  may  be  dis- 
tion  of  the  person  of  the  de-  missed.  This  latter  provision  is 
fendant.  —  Jones  v.  Marshall,  3  not  mandatory;  authority  to  dis- 
Kan.  App.   529,   43   Pac.   840.  miss     rests    in    the    sound     legal 

3  Kerr's     Cyc.    Cal.    Code     Civ.  discretion    of    the    trial    Judge.— 
Proc,  §  405.  Knight    v.    Fisher,    15    Colo.    176, 

4  Kerr's    Cyc.    Cal.     Code    Civ.  25  Pac.  78;  Burkhardt  v.  Haycox, 
Proc,  §  406.  19  Colo.  339,  35  Pac.  730. 

149 


§127 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  r, 


power  is  in  its  discretion.^  The  dismissal  of  an  action  for 
want  of  service  of  the  summons  is  also  in  the  discretion  of 
the  trial  judge, "^  the  only  limitation  upon  the  judge  being 
that  he  shall  not  abuse  his  legal  discretion."  An  order 
of  the  court  striking  from  the  files  a  complaint,  where  no 
service  of  process  was  had  on  the  defendant  until  after 
nine  years  had  elapsed,  was  held  not  to  be  an  abuse  of  the 
judicial  discretion.** 

Signed   by   cler¥*   of  court,   summons   must  be,    and 
directed  to  the  defendant,  and  it  must  be  issued  under 


5  Dupuy  V.  Shear,  29  Cal.  238; 
Coombs  V.  Parish,  6  Colo.  296; 
Stevens  v.  Carson,  21  Colo.  283,  40 
Pac.  570,  reversing  2  Colo.  App. 
200,  30  Pac.  1101;  State  Sav.  Bank 
V.  Albertson,  39  Mont.  421,  102 
Pac.    694. 

« Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §581;  Grisby  v.  Napa 
County,  36  Cal.  585,  99  Am.  Dec. 
213;  Carpentier  v.  Minturn,  39  Cal. 
450;  Eldridge  v.  McKay,  45  Cal. 
49,  50;  Landor  v.  Flemming,  47 
Cal.  614;  McDonald  v.  Sweet,  76 
Cal.  257,  18  Pac.  324;  Murray  v. 
Gleeson,  100  Cal.  511,  35  Pac.  88; 
Hassey  v.  South  San  Francisco 
Homestead  &  R.  Assoc,  102  Cal. 
611,  613,  614,  36  Pac.  945;  First 
Nat.  Bank  v.  Nason,  115  Cal.  626, 
628,  47  Pac.  595;  McLaughlin  v. 
Clausen,  116  Cal.  487,  489,  48  Pac. 
437;  People  ex  rel.  Stone  v.  Jef- 
ferds,  126  Cal.  296,  299,  58  Pac. 
704;  Ferris  v.  Wood,  144  Cal.  426, 
428,  77  Pac.  1037;  Knight  v.  Fisher, 
15  Colo.  176,  25  Pac.  78;  State 
Sav.  Bank  v.  Albertson,  39  Mont. 
421,  102  Pac.  694;  Luke  v.  Ben- 
nion,  36  Utah  64,  106  Pac.  713. 

7  Kreiss  v.  Hotaling,  99  Cal. 
383,  33  Pac.  1125.  See:  Cowell  v. 
Stewart,  69  Cal.  525,  11  Pac.  57; 
Saville  v.   Frisbie,   70   Cal.    87,   11 


Pac.  502;  Kubli  v.  Hawkett,  89 
Cal.  638,  27  Pac.  57;  Castro  v. 
San  Francisco,  City  of,  4  Cal. 
Unrep.  500,  35  Pac.  1035;  San  Jose 
Land  &  Water  Co.  v.  Allen,  129 
Cal.  247,  250,  61  Pac.  1083;  Mowry 
v.  Weisenhorn,  137  Cal.  110,  113, 
69  Pac.  971;  Bernard  v.  Parmelee, 
6  Cal.  App.  545,  92  Pac.  661;  Gray 
V.  Times-Mirror  Co.,  11  Cal.  App. 
160,   104  Pac.  482. 

Statute  mandatory  where  ser- 
vice and  return  not  made  within 
six  years. — Vrooman  v.  Li  Po  Tai, 
113  Cal.  302,  306,  45  Pac.   470. 

s  Dupuy   V.    Shear,   29    Cal.   238. 

0  Lindsay  v.  Kearny  County 
Commissioners,  56  Kan.  630,  44 
Pac.   603. 

Clerk  of  Probate  Court  may 
sign  summons  in  Idaho. — Zim- 
merman V.  Bradford-Kennedy  Co., 
14  Idaho  681,  95  Pac.  825. 

Signature  of  clerk  fundamental 
part  of  summons,  and  failure  of 
clerk  to  sign  summons  renders  it 
invalid. — Sharman  v.  Huot,  20 
Mont.  555,  63  Am,  St.  Rep.  645, 
52   Pac.  558. 

— Affixing  seal  of  court  is  a  suf- 
ficient adoption  by  the  clerk  of 
his  printed  signature  on  the  in- 
strument.— Ligare  v.  California 
So.    R.    Co.,    76    Cal.    610,    18    Pac. 


150 


h.  IX.] 


STYLE   OF   SUMMONS. 


§128 


the  seal  of  the  court.^^  A  summons  without  authentica- 
tion by  the  seal  of  the  court  is  void.^^  A  substantial  com- 
pliance with  the  requirements  of  the  statute  in  issuing  a 
summons,  is  all  that  is  required.^- 

Abbreviations  in  summons,  such  as  are  in  common  use, 
may  be  used  in  a  summons,  the  same  as  in  any  other  legal 
document,  pleading,  or  record,  of  legal  proceedings,  and 
numbers  may  be  expressed  by  figures  or  numerals  in  the 
customary  manner. ^^ 

§  128.  Style  of  process  or  summons.  The  form  of 
process,  and  in  what  name  it  shall  run, 'is  prescribed  by 
the  constitution  or  by  the  codes  and  statutes  of  the  vari- 
ous states.^    The  constitution  of  California  provides  that 


777;  Loughren  v.  Bonniwell,  125 
Iowa  521,  106  Am.  St.  Rep.  319, 
101  N.  W.  288. 

Signature  by  attorney  for 
plaintiff  summons  sufficient  in 
Colorado. — Rand  v.  Pantagraph 
Stationery  Co.,  1  Colo.  App.  270, 
28  Pac.  661.  Summons  so  signed 
is  not  "process."  See,  ante,  §  128, 
footnote   2. 

10  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,    §  407. 

Paper  not  signed  by  clerk  and 
without  indication  of  seal  of 
court,  insufficient  notice  to  give 
court  jurisdiction  of  person  of  de- 
fendant.— Jones  V.  Marshall,  3 
Kan.  App.  529,  43  Pac.  840. 

11  Choate  v.  Spencer,  13  Mont. 
127,  40  Am.  St.  Rep.  425,  20 
L.  R.  A.  424,  32  Pac.  6.j1. 

Remediable  irregularity  for  clerk 
to  omit  seal,  under  statute  per- 
mitting amendment. — Starkey  v. 
Lung,  57  Ore.  151,  Ann.  Cas.  1912D, 
783,  110  Pac.  702.  See  Kipp  v. 
Burton,  29  Mont.  99,  101  Am.  St. 
Rep.  544,  63  L.  R.  A.  ;]27,  74  Pac. 


Requirement  of  seal  mandatory. 
— Farrell,  In  re,  36  Mont.  262,  92 
Pac.  785;  White  v.  Taylor,  46 
Tex.  Civ.  App.  473,  102  S.  W. 
747. 

12  See:  Burkhardt  v.  Haycox,  19 
Colo.  339,  35  Pac.  730;  White  v. 
litis,  24  Minn.  46;  Higby  v. 
Pollock,  21  Nev.  198,  207,  27  Pac. 
895;  Ralph  v.  Lomer,  3  Wash. 
401,    405,   28    Pac.   760. 

13  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,    §  186. 

1  Illinois  Const.  1870,  art.  VI. 
§33. 

Louisiana  Const.  1812,  art.  4, 
§6;  Const.  1845,  art.  45;  Const. 
1852,  art.  71. 

Does  not  include  citations. — 
Bludworth  v.  Sonipeyrac,  3  Mont. 
(O.  S.)  719:  Kimball  v.  Taylor,  2 
Woods  37,  Fed.  Cas.  No.  7775. 

Michigan   Const,   art.   VI,   §35. 

Minnesota  Const,  art.  VI,  §  14. 

Summons  not  "process"  within. 
— Cleland  v.  Tavernier,  11  JNIinn. 
194;  Hanna  v.  Russell,  12  Minn. 
80;  Lowrey  v.  Harris,  12  Minn. 
255. 


151 


§128 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


the  style  of  process  sliall  be  ' '  The  People  of  the  State  of 
California,"  and  that  all  prosecutions  shall  be  conducted 
in  the  name  and  by  the  authority  of  the  people  of  the 
state.^    The  style  of  the  summons  as  above  given  is  the 


Nebraska  Code   (1882),   §880. 

Nevada  Const,  art.  VI,  §  13. 

Does  not  include  summons. — 
Brooks  V.  Nevada  Nickel  Syndi- 
cate, 24  Nev.  311,  53  Pac.  597, 

New  Jersey  Const,  art.  VIII,  §  3. 

Applies  to  English  common-law 
writs  only.— Lenning  v.  Newkirk, 
7  N.  J.  L.  (2  Hoist.)   87. 

Oregon  Code    (1876)    §  1166. 

Not  a  "process." — Bailey  v.  Wil- 
liams, 6  Ore.  71;  Whitney  v, 
Blackburn,  17  Ore.  571,  11  Am.  St. 
Rep.  857,  21  Pac.  876. 

Wisconsin   Const,  art.  7,  §  17. 

2  California  Const.  1879,  art.  VI, 
§  20,  Henning's  Gen.  Laws,  2d  ed., 
p.   64. 

In  Nevada  a  summons  is  not  a 
"process"  within  the  meaning  of 
the  constitution,  art,  VI,  §  13,  re- 
quiring all  process  to  run  in  the 
name  of  the  state. — Brooks  v. 
Nevada  Nickel  Syndicate,  24  Nev. 
311,  53  Pac.   597. 

Under  Colorado  statute  (Act 
April  7,  1885)  a  summons  issued 
and  signed  by  plaintiff's  attorney  is 
not  "process"  within  the  purview 
of  a  constitutional  provision  re- 
quiring all  process  to  run  in  the 
name  of  the  people,  although  its 
service  is  the  statutory  method  of 
commencing  a  suit. — Comet  Con- 
sol.  Min.  Co.  V.  Frost,  15  Colo.  310, 
25  Pac.  506. 

Under  Oregon  Code  the  sum- 
mons is  used  to  commence  a  civil 
action,  but  technically  such  sum- 
mons is  not  "process,"  but  is  more 
in  the  nature  of  a  mere  notice  in- 
forming the  defendant  that  an  ac- 


tion has  been  commenced  against 
him,  and  that  he  is  required  to 
answer  the  complaint  within  a 
specified  time.  —  Bailey  v.  Wil- 
liams, 6  Ore.  71;  Whitney  v. 
Blackburn,  17  Ore.  564,  571,  11 
Am.  St.  Rep.  857,  862,  21  Pac.  874. 

Immaterial  In  what  part  of 
summons  require  style  is  in- 
serted.— White  V.  Com.,  6  Beir 
(P.  A.)  179,  6  Am.  Dec.  443. 

Not  running  in  name  of  state, 
process  fatally  defective.  —  Gil- 
breath  v.  Kuykendall,  1  Ark.  (1 
Pike)  50;  Wallahan  v.  Ingersoll, 
117  111.  123,  7  N.  E.  519;  Yeager 
V.  Groves,  78  Ky.  278;  Little  v. 
Little,  5  Mo.  227,  32  Am.  Dec. 
317;  Manville  v.  Battle  Mountain 
Smelting  Co.,  5  McC.  328,  27  Fed. 
126. 

Contra:  Gilmer  v.  Bird,  15  Fla. 
410  (summons  not  a  "process"); 
Nichols  V.  Burlington  &  Louisa 
County  Plank  Road  Co.,  4  G. 
Greene  (Iowa)  42;  Hansford  v. 
Hansford,  34  Mo.  App.  362  (pro- 
vision merely  directory) ;  Bailey 
V.  Williams,  6  Ore.  17;  Whitney 
V.  Blackburn,  17  Ore.  571,  11  Am. 
St.  Rep.  857,  21  Pac.  876;  Porter 
V.  Vandercook,  11  Wis.  70  (under 
code). 

Novel  jurisdiction  conferred 
upon  court  by  statute  laying  down 
mode  of  procedure,  summons  need 
not  run  in  name  of  "the  people," 
unless  the  statute  so  requires. 

Process  in  name  of  United 
States,  within  jurisdiction  of  state, 
is  void. — Gilbreath  v.  Kuykendall, 
1  Ark.  (1  Pike)  50. 


152 


ell.  IX.]  SUMMONS,  FORM  AXD  CONTEXTS.  §  129 

only  thing  regarding  the  head  of  the  summons  that  is  in- 
dispensable. The  California  Code  of  Civil  Procedure 
provides,  among  other  things,  that  the  summons  shall 
contain  the  name  of  the  court  in  which  the  action  is 
brought  ;^  but  it  is  thought  that  the  name  of  the  court  at 
the  commencement  of  the  summons  is  not  an  indispen- 
sable element  to  a  valid  summons,  and  that  consequently 
an  error  in  the  name  of  the  court  will  not  be  fatal  to  the 
validity  of  a  summons  otherwise  sufficient.  Thus,  in  an 
early  case  in  California,  before  the  adoption  of  the  pres- 
ent constitution  and  the  change  in  the  nomenclature  of 
the  courts,  at  the  head  of  the  summons  was  written  ''Dis- 
trict Court  of  the  fourth  judicial  district,"  but  the  sum- 
mons was  issued  from  the  County  Court,  and  tested  by 
the  county  judge :  it  was  held  that  the  words  at  the  top 
of  the  summons,  ''District  Court,"  etc.,  were  no  part  of 
the  writ.^ 

Name  of  attorney  for  plaintiff  is  usually  endorsed  upon 
a  summons  in  California,^  but  the  Code  of  Civil  Pro- 
cedure does  not  so  require.^ 

3.   Form  and  Contents  of  Summons. 

%  129.  Contents  of  summons — 1.  Names  of  paeties  to 
ACTION,  ETC.    The  California  Code  of  Civil  Procedure  pre- 

State     and     county     named     in  3  Kerr's     Cyc.     Cal.     Code     Civ. 

margin,  separated  by  a  line  from      Proc,  §  407. 
the  commencement,  not  a  running         4  Crane  v.  Brannan,  3  Cal.  195. 

in     name     of     state.— Fowler     v.  

"Stating  the  name   of  the  court 

Watson,   4   Mo.    27.  ..,.,•   ^  •         ^          1      „^ 

., .  in  the  complaint  is  a  formal,  and 

"State  of  West  Virginia"  is  not  ^        .     .    ■,.  ^.       ,         .,      ..     ,t- 

•     J  ..T     ..1,  not  a  jurisdictional  matter.  — Mr. 

equivalent  to  the  required     In  the  a^„.«o    ,. 

^                 ,       „.            ,  ,Tr     X   Tr-  Justice    Wolverton    m    Adams    v. 

name   of   the   State   of  West  Vir- 

.   .    „     „       ^          ^,„.,         ,.    „r  Kelly,  44  Ore.  66,  74  Pac.  .'.00,  rc- 

ginia." — Beach   v.   O  Riley,    14    W.  .      . 

viewing  the  precedents. 
Va    55 

Compare:    Mabbett    v.   Vick,    53  •' See  Jury's  Adjudicated   For^.s 

Wis    158,   10  N.  W.   84.  °^   Pleading   and   Practice,   vol.   II, 

"The  State  of  Florida"  held  suf-  P-  15^04.  form  No.   472. 

ficient    style    of    process    in    that  «  See  Kerrs  Cyc.  Cal.  Code  Civ. 

state.— Branch   v.    Branch,    6    Fla.  Proc,  §  407. 
214. 

153 


§129 


CODE  PLEADING  AND  PRACTICE. 


[Pt.I, 


scribes  the  contents^  of  a  summons.-  This  requirement 
is  that  the  summons  shall  state,  among  other  things  enu- 
merated: (1)  The  names  of  the  jjarties  to  the  action  ;•• 
(2)  the  court  in  which  the  action  is  brought,^  and  (3)  the 
county  in  which  the  complaint  is  filed.^  These  require- 
ments of  the  Code  are  thought  to  be  mandatory,  and  not 
merely  directory.^ 


1  As  to  style  of  summons,  see, 
ante,   §  124. 

2  For  form  of  summons,  see 
Jury's  Adjudicated  Forms  of 
Pleading  and  Practice,  vol.  II,  pp. 
1804  et  seq. 

3  See,  post,  footnotes  6  and  12, 
this   section. 

4  Name  of  county  changed  re- 
cently, entitling  summons  in  old 
name  of  county  instead  of  in  new 
name  of  county,  does  not  consti- 
tute a  fatal  defect,  where  the 
summons  is  regular  in  all  other 
respects. — Vicks  v.  Gilmer,  5  Okla. 
740,  50  Pac.  131. 

Omission  of  name  of  court  does 
not  render  summons  void  where 
a  copy  of  the  complaint  is  served 
with  a  copy  of  the  summons,  and 
the  complaint  contains  the  name 
of  the  court;  the  complaint  cures 
the  defect. — See:  Webb  v.  Mott,  6 
How.  Pr.  (N.  Y.)  439;  Yates  v. 
Blodgett,  8  How.  Pr.  (N.  Y.)  278; 
Hewitt  V.  Howell,  8  How.  Pr. 
(N.  Y.)  346;  Tallman  v.  Hinman, 
10  How.  Pr.   (X.  Y.)   89. 

See,  also,  ante,  §  125. 

Name  of  court  correctly  given 
in  summons,  the  fact  that  on  the 
face  of  the  complaint  there,  is  a 
misnomer  of  the  court,  though  the 
proper  name  is  endorsed  on  the 
back  or  cover  of  the  complaint,  is 


a  defect  not  affecting  a  sybstan- 
tial  right  of  the  defendant. — Fil 
Ki,  Ex  parte,  79  Cal.  584,  21  Pac. 
974. 

Wrong  name  of  court  given, 
when  summons  otherwise  regular 
and  sufficient,  has  been  said  not 
to  vitiate  the  summons.  Thus, 
where  the  summons  was  headed 
with  the  words  "District  Court," 
but  was  issued  out  of  the  County 
Court,  under  the  County  Court 
seal,  and  attested  by  the  judge  of 
said  court,  it  was  held  good  as 
the  writ  of  the  County  Court. — 
Crane  v.  Brannan,  3  Cal.  192. 

5  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,    §  407,   subd.    1. 

Omission  of  name  of  county  in 
which  action  brought  held  to 
have  been  cured  by  service  of 
copy  of  complaint  with  copy  of 
summons.  —  First  Nat.  Bank  of 
Joseph  V.  Rusk,  64  Ore.  35,  44 
L.  R.  A.  (N.  S.)  138,  127  Pac.  780,  > 
129  Pac.  121. 

See,  also,  authorities  sustaining 
this  holding  collected  in  .'note  44 
L.   R.   A.    (N.  S.)    138-146. 

f.  Lyman  v.  Milton,  44  Cal.  630; 
Ward  V.  Ward,  59  Cal.  139,  141; 
Smith  V.  Aurich,  6  Colo.  388;  White 
V.  Johnson,  27  Ore.  282,  294,  50 
Am.  St.  Rep.  726,  733,  40  Pac.  511. 

Compare.  Bewick  v.  Muir,  83 
Cal.  368,  369,  23  Pac.  389. 


loi 


Ch.  IX.]  NAMES  OF  ALL  PARTIES  TO  BE  GIVEN.  §§  130,  131 

§  130. Several   persons   parties.      In    those 

cases  in  wbicli  there  are  several  persons  parties,  either 
l)arties  plaintiff  or  parties  defendant,  under  the  provi- 
sion of  the  Code  requiring  the  setting  out  of  the  names 
of  the  parties  to  the  action,*  the  individual  names  of  each 
person  who  is  a  party,  either  as  plaintiff  or  as  defend- 
ant, should  be  inserted  in  the  summons.  The  insertion 
merely  of  the  name  of  the  first  plaintiff,  or  of  the  first 
defendant,  followed  by  the  Latin  abbreviation  ''et  al." 
or  its  equivalent  in  English,  *'and  another"  or  "and 
others,"  as  the  case  may  be,  is  thought  not  to  be  a  suffi- 
cient compliance  with  the  requirement  of  the  code.  The 
provision  of  the  Code  of  Civil  Procedure  relative  to 
papers  ^\^thout  a  title  or  with  a  defective  title,-  mani- 
festly has  reference  to  and  applies  to  papers  filed  in  the 
various  steps  of  a  cause  after  the  court  has  acquired 
jurisdiction  of  the  cause  and  of  ^he  person  of  the  defend- 
ant, but  has  no  reference  to  and  is  not  applicable  to  a 
])rocess  originating  jurisdiction  of  the  person  of  the  de- 
fendant or  defendants,  in  view  of  the  mandatory  provi- 
sions of  section  407.^ 

§131. Under  Practice  Act  §  54.  The  re- 
quirement under  the  Practice  Act  in  force  prior  to  the 
adoption  of  the  Code  of  Civil  Procedure  in  California, 
was  essentially  the  same  as  the  requirement  under  that 
Code,  being  that  *'the  summons  shall  state  the  parties  to 
the  action."  Under  this  requirement  of  the  Practice  Act 
it  was  held  that  the  summons  must  contain  the  names  of 
all  the  parties  defendant,  and  that  it  is  not  sullicient  to 
give  the  name  of  the  first  defendant,  followed  by  the 
Latin  abbreviation  '*et  al."  The  court  saying  that  "the 
words  *et  al.,'  in  the  connection  in  which  they  are  used 
in  the  summons,  are  of  no  significance."*     This  holding 

1  See,   ante,    §  129.  i  Lyman  v.  Milton,  44  Cal.   G30. 

li  Kerr's  Cyc.  Cal.  Code  Civ.  633.  See:  Cameron  v.  Slieppard, 
Proc,  §1046.  71  Ga.  781,  782:   Orr  v.  Webb,  101 

o  See,  ante,  §  129,  footnote  6.  Ga.  89,  92,  28  S.  E.  618. 

155 


§  132  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

of  the  court  is  not  only  sound  on  principle,  but  is  in  full 
accord  with  the  decisions  of  other  courts  on  cognate 
questions  involving  the  sufficiency  of  the  words  "  et  al. " 
to  represent  parties  to  an  action  who  are  not  otherwise 
named,  where  there  are  two  or  more  such  parties.  Thus, 
it  has  been  directly  held  that  the  words  ' '  et  al. "  amount 
to  nothing  in  a  bill  of  exceptions,  and  that  the  persons 
whose  names  are  not  set  out  are  not  parties  to  the  appeal  ;-" 
that  they  are  not  sufficiently  descriptive  in  an  exception  to 
the  probate  of  a  will,  as  they  do  not  identify  the  persons 
who  would  be  the  particular  beneficiaries  of  a  judgment  of 
reversal  f  that  they  are  not  sufficient  following  the  name 
of  a  party  in  a  petition  for  a  writ  of  error,^  to  designate 
any  person  whose  name  is  not  set  out,  although  such  other 
person  was  a  party  on  the  trial  below  f  that  a  recital  in 
a  clerk's  entry  to  the  effe(*t  that  a  jury  was  duly  sworn  to 
try  the  issues  in  a  cause  between  A  against  B  ^'et  al.," 
does  not  indicate  that  the  jury  was  sworn  to  try  the  cause 
as  against  C  and  D,  also  defendants.^  Other  like  deci- 
sions could  be  given,  but  these  must  suffice. 

§  132. Where   plaintiff   ignoFlANt   of   true 

NAME.  In  those  cases  in  which  the  plaintiff  is  ignorant  of 
the  true  name  of  the  defendant,  that  fact  must  be  stated 
in  the  complaint^ — and  that  ignorance  must  be  real  and 
not  wilful  ig-norance,  or  such  as  might  be  removed  by 
inquiry- — he  may  designate  the  defendant  by  any  name, 

■2  Mutual  Building,  L.  &  Invest,  praised,  there  being  other  defen- 
ce. V.  Dickerson,  112  Ga.  469,  37  dants  whose  interest  is  not  ap- 
S.  E.  713;  Orr  v.  Webb,  112  Ga.  praised,  does  not  vitiate  the  ap- 
806,  808,  38  S.  E.  98.  praisement.— Pierce     v.     Reed,     3 

3  Swift  V.  Thomas,  101  Ga.  89,  28  ^'^b.  Unof.  Rep.  874,  93  N.  W.  154. 

S.  E.  618.  ^  Breidenthal    v.    McKenna,    19 

1  Rosencrantz  v.  Rogers,  40  Cal. 
5  Brabham  v.   Custer  County,  3      439, 

Neb.  Unof.  Rep.  801,  92  N.  W.  989.  o"id.;     Clark    v.    Oregon    Short 

Addition    of    "et    al."    after    de-      Line  R.  Co.,  29  Mont.  321,  74,  Pac. 

fendant    whose    interest    is    ap-      735. 

156 


ell.  IX.]  FICTITIOUS  XAilE APPEARANCE.  §  132 

and  he  may  be  so  identified  in  the  summons  and  served 
therewith;  when  the  true  name  is  discovered,  the  plead- 
ings and  papers  or  proceedings  must  be  amended  by  in- 
serting the  true  name,^  and  the  defendant  thereby  be- 
comes a  party  to  the  action  under  his  true  name  from 
the  beginning  thereof.*  Where  there  is  no  allegation  in 
the  complaint  that  the  name  of  the  defendant  is  to  the 
plaintiff  unknowTi,  there  is  no  foundation  for  the  bringing 
of  an  action  against  a  fictitious  person,  and  no  authority 
to  make  service  of  summons  by  publication.^  Where  the 
complaint  alleges  that  the  name  of  the  defendant  is  un- 
known, it  has  been  said  that  the  defendant  in  such  a  case 
is  not  entitled  to  have  the  summons  set  aside  on  the 
ground  that  the  plaintiff  could  readily  have  ascertained 
the  real  name  of  the  defendant,  if  he  had  exercised  rea- 
sonable diligence  in  examining  the  public  records  of  the 
county.^ 

Defendant  having  appeared,  being  sued  in  a  fictitious 
name,  and  answered  by  his  true  name,  it  is  not  necessary 
that  the  summons  be  amended  by  inserting  the  true  for 
the  fictitious  name,  for  the  reason  that  the  appearance  of 
the  defendant  is  a  waiver  of  any  defect  in  the  summons, 
or  of  any  summons  at  all.'^  The  complaint,  however,  must 
be  amended,  or  the  judgment  will  be  irregular,  though 
not  void,^  and  reversible  on  appeal,  because  appearance 

3  Kerr's  Cyc.  Cal.  Code  Civ.  8  Campbell  v.  Adams,  50  Cal. 
Proc,  §474.  205;    Baldwin  v.   Morgan,   50   Cal. 

4  See,  Hoffman  v.  Keeton,  132  589;  Farris  v.  Merritt,  63  Cal.  119; 
Cal.  195,  196,  64  Pac.  264.  Tyrrell  v.  Baldwin,  67  Cal.  1,  3,  6 

5  People  V.  Herman,  45  Cal.  689,  Pac.  867;  Johnston  v.  San  Fran- 
690.  Cisco  Sav.  Union,  75  Cal.  134,  140, 

6  Irving  V.  Carpentier,  70  Cal.  7  Am.  St.  Rep.  132,  16  Pac.  753. 
23,  11  Pac.  391;  Hoffman  v.  Served  in  wrong  name,  failure 
Keeton,  132  Cal.  195,  197,  64  Pac.  of  defendant  to  appear  and  answer 
264;  Blackburn  v.  Bucksport  &  Elk  will  not  relieve  him  of  any  judg- 
River  R.  Co.,  7  Cal.  App.  649,  654,  ment  that  may  be  rendered.  Thus, 
95  Pac.  670.  where   defendant   was   sued   on   a 

7  As  to  appearance,  see,  post,  foreign  judgment  rendered  against 
§§  255-288.  "P.  J.  Narver,"  he  can  not  avoid 

157 


§§133,134  CODE   PLEADING   AND   PRACTICE.  [t't.  1, 

and  answer  by  the  defendant  is  not  a  waiver''  of  such 
amendment.^"  If  the  name  by  which  a  party  defendant 
is  known  is  inserted,  it  is  sufficient;"  where  the  name  as 
given,  when  pronounced,  sounds  the  same  as  the  true 
name,  the  doctrine  of  the  idem  sonans  applies. ^- 

§  133. Where  party  sues  or  is  sued  in  repre- 
sentative CHARACTER.  Where  a  party  is  sued  in  a  repre- 
sentative character,  or  sues  in  such  character,  the  char- 
acter in  which  he  sues  or  is  sued  should  be  stated  in  the 
summons  after  his  name;^  and  the  summons  and  com- 
plaint must  agTee  in  this  regard.  Thus,  where  the  sum- 
mons described  the  plaintiff  as  administrator,  and  in  the 
complaint  he  is  represented  as  suing  in  his  individual 
capacity,  and  for  a  demand  in  his  own  right,  the  variance 
mil  be  fatal.- 

§134. Where  new  parties  are  brought  in. 

Under  the  reformed  system  of  judicature,  created  by  the 
adoption  of  codes  of  procedure  in  many  of  the  states,  the 

liability  by  evidence  establishing  person  served  as  one  of  the  de- 
the  fact  that  his  name  is  "John  fendants  is  prima  facie  estab- 
Warner." — Foshier  v.  Narver,  24  lished. — Galliano  v.  Kilfoy,  94  Cal. 
Ore.  441,  41  Am.  St.  Rep.  874,  34  86,  29  Pac.  416.  See,  Donohoo- 
Pac.  21.  Kelly    Banking    Co.    v.    Southern 

9  Baldwin    v.    Morgan,    50    Cal.      ^^^-  ^-   Co.,   138  Cal.   183,   19:],  04 

Am.  St.  Rep.  28,  71  Pac.  93.      . 

"Question    whether    name    idem 
sonans  with  another  is  not  a  ques- 
tion of  spelling  but  of  pronunc^a- 
n  Cooper     v.     Burr,     45     Barb.      tion,    depending    less    upon    rule 
(N.  Y.)    9;    Miller  v.  Stettiner,  20      than  upon   usage."— Com.   v.   Don- 
N.  Y.  Sup.  Ct.  Rep.  (7  Bosw.)  692,      0^3^,  95  Mass.  571.    See:  Schlachs 
22  How.  Pr.  518.  v.  Johnson,  13  Colo.  App.  130,  56 

12  Thus,  where  a  defendant  sued      Pac.  673;  Roland  v.  State,  127  Ga. 
as     "Rosa"     Kilfoy     has     default      402,   56  S.  E.   413. 
entered  against  her  by  that  name  As  to  idem  sonans,  see  note,  27 

upon  a  return  of  service  of  sum-  Am.  St.  Rep.  785;  100  Am.  St.  Rep. 
mons    upon     "Rose"     Kilfoy,     de-      331,   341. 

scribed   in   the  return  as   "one  of  1  Ryan  v.  Holliday,  110  Cal.  335, 

the  defendants,"  the  names  will  be      42  Pac.  891. 

considered     as     substantially     the  2  Blanchard    v.    Strait,    8    How. 

same,    and    the    identity    of    the      Pr.  (N.  Y.)  83. 

158 


585. 

10  McKinlay    v.    Tuttle,    42    Cal 
577. 


ch.  IX.] 


NEW  PARTIZS   BROUGHT  IN. 


§134 


courts  have  power  to  order  new  parties  to  be  brought  into 
the  case  when  necessary  for  the  purposes  of  justice  ;^  and 
this  the  courts  may  do  of  its  own  motion  whenever  neces- 
sary to  a  full  and  complete  administration  of  justice  in 
the  cause  before  them.-  In  some  jurisdictions,  under  the 
new  system  of  judicature,  new  parties  are  brought  in  by 
amendment  of  the  pleadings,^  and  this  is  probably  the 
prevailing  practice;^  in  other  jurisdictions  by  means  of 
cross-complaint  or  cross-bill,^  or  by  supplemental  com- 


1  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,   §  339. 

2  May  dismiss  without  prejudice 
to  the  bringing  of  a  new  action,  in 
which  all  the  necessary  parties 
will  be  included. — Knapp  v.  Mc- 
Gowan,   96  N.  Y.  75. 

See  matter  fully  discussed  in 
the  part  of  this  treatise  devoted  to 
"Parties  to  Action." 

3New  parties  can  not  be 
brought  in  by  amendment  under 
the  doctrine  of  some  decisions 
and  the  practice  in  some  jurisdic- 
tions.— See,  among  other  cases: 
McWilliams  v.  Anderson,  68  Ga. 
772;  Winslow  v.  Merrill,  11  Me. 
127;  Ayer  v.  Gleason,  60  Me.  207; 
Chouteau  v.  Hewitt,  10  Mo.  131; 
Wilson  V.  Wallace,  8  Serg.  &  R. 
(Pa.)  53;  Chamberlin  v.  Hite, 
5  Watts  (Pa.)  373;  Noll  v.  Swini- 
ford,  6  Pa.  St.  187. 

4  Hook  V.  Brooks,  24  Ga.  175; 
Chapin  v.  Curtenius,  15  111.  427; 
Goddard  v.  Pratt,  33  Mass.  (16 
Pick.)  412;  Montague  v.  King,  37 
Miss.  441;  Owen  v.  Weston,  63 
N.  H.  599,  56  Am.  Rep.  547;  State 
ex  rel.  Thorndike  v.  Collins,  68 
N.  H.  46,  36  Atl.  550;  Powell  v. 
Myers,  1  Barb.  (N.  Y.)  427;  Green 
v.  Deberry,  24  N.  C.  (2  Ir°d.  L.) 
344;  White  v.  Johnson,  27  Ore. 
282,  50  Am.  St.   Rep.  726,  40   Pac. 


511;  Walthour  v.  Spangler,  31  Pa. 
St.  523;  Mead  v.  Bagnall,  15  Wis. 
156;  Lewis  v.  Darling,  57  U.  S. 
(16  How.)  1,  14  L.  Ed.  819;  Hub- 
bard v.  Manhattan  Trust  Co.,  30 
C.  C.  A.  520,  87  Fed.  57;  Thomas 
V.  Anderson,  138  C.  C.  A.  405, 
223  Fed.  44. 

Upon  appeal,  upon  hearing, 
order  may  be  made  that  cause 
stand  over,  with  liberty  to  plain- 
tiff in  action  below  to  add  new 
parties  by  amendment. — Lewis  v. 
Darling,    57    U.    S.     (16    How.)     1, 

14  L.  Ed.  819. 

i5  Contrary  view,  under  former 
system  of  judicature,  in  which 
cross-bill  to  make  new  parties  is 
improper  and  irregular;  cross-bill 
implies  a  demand  by  a  defendant 
against  an  existing  plaintiff  to  a 
pending  suit,  or  against  other 
existing  defendants  of  such  suit, 
or  both  against  existing  plaintiffs 
and  defendants. — Shields  v.  Bar- 
row, 58  U.  S.   (17  How.)   130,  145, 

15  L.  Ed.  158.  162.  See:  Phoenix 
Mut.  Lifs  iiis.  Co.  V.  Grant,  3  McA. 
(D.  C.)  47;  Ladner  v.  C»g-uca,  31 
Miss.  340;  Bishop  v.  Miller,  48 
Miss.  369;  Derbyshire  v.  Jones,  94 
Va.  142,  26  S.  E.  417;  Ayres  v. 
Carver,  58  U.  S.  (17  How.)  595, 
15  L.  Ed,  181;  Randolph  v.  Robin- 
son, 3  N.  J.  L.  Journal   171,  Fed. 


159 


§134 


CODE  PLEADING  AND   PRACTICE. 


[Pt.  I, 


plaint  or  supplemental  bill  f  while  in  yet  other  jurisdic- 
tions new  parties  are  inducted  into  the  case  either  by 
amended  or  supplemental  pleading  and  a  new  summons.' 
By  whatever  process  new  parties  are  brought  into  court, 
as  to  them  it  is  a  new  action  or  suit,^  and  the  court  can 


Cas.  No.  11561;  Adelbert  College 
of  Western  Res.  University  v.  To- 
ledo, W.  &  W.  R.  Co.,  47  Fed.  836, 
846;  Gregory  v.  Pike,  15  C.  C.  A. 
33,  67  Fed.  845;  Thurston  v.  Big 
Stone  Gap  Imp.  Co.,  86  Fed.  485, 
486;  Patton  v.  Marshall,  97  C.  C.  A, 
610,  173  Fed.  354,  26  L.  R.  A. 
(N.  S.)  127;  United  States  v. 
Woods,  138  C.  C.  A.  578,  223  Fed. 
318;  United  States  Gypsum  Co.  v. 
Hoxie,  172  Fed.  505. 

Defendant  requiring  new  parties 
must  file  original  pleading  of  his 
own. — Richman  v.  Donnell,  53  N.  J. 
Eq.  35,  30  Atl.  534. 

«  CAL. — Goodell  v.  Verdugo 
Canyon  Water  Co.,  138  Cal.  308,  71 
Pac.  354;  Winter  v.  McMillan,  87 
Cal.  256,  22  Am.  St.  Rep.  243,  25 
Pac.  407,  distinguishing  Harrison 
V.  I.IcCormick,  69  Cal.  616,  618, 
11  Pac.  456;  Eureka,  City  of,  v. 
Gates,  120  Cal.  54,  58,  52  Pac.  125; 
Lewis  V.  Fox,  122  Cal.  244,  250,  54 
Pac.  823;  MacKenzie  v.  Hodgkin, 
126  Cal.  591,  595,  77  Am.  St.  Rep. 
209,  212.  59  Pac.  36;  Stockton  Sav. 
&  L.  Soc.  V.  Harrold,  127  Cal.  612, 
60  Pac.  165;  Alpers  v.  Bliss,  145 
Cal.  565,  571,  79  Pac.  171;  Mitau 
V.  Roddan,  149  Cal.  1,  9,  6  L.  R.  A. 
(N.  S.)  275,  84  Pac.  145;  Syvertson 
V.  Butler,  3  Cal.  App.  345,  347,  85 
Pac.  164.  COLO.— Allen  v.  Tritch, 
5  Colo.  222,  228.  FLA.— Price  v. 
Stratton,  45  Fla.  535,  33  So.  644. 
GA. — Morgan  v.  Morgan,  10  Ga. 
297.  IOWA— Bunce  v.  Bunce,  59 
Iowa  533,  534,  13  N.  W.  705; 
Farmers'    &   Merchants'    Bank    v. 


Wood  Bros.  &  Co.,  143  Iowa  635, 
118  N.  W.  282,  120  N.  W.  625. 
MICH.— Griffin  v.  Griffin,  112  Mich. 
87,  89,  70  N.  W.  423,  424.  N.  Y.— 
Prouty  V.  Lake  Shore  &  M.  S.  R. 
Co.,  85  N.  Y.  372.  TENN.— Hilde- 
brand  v.  Hildebrand,  54  Tenn.  (7 
Heisk.)  123;  Pollard  v.  Wellford, 
99  Tenn.  120,  42  S.  W.  25. 
UTAH — Chalmers  v.  Trent,  11 
Utah  88,  99,  39  Pac.  488.  W.  VA.— 
Kanawha  Lodge  v.  Swann,  37  W. 
Va.  178,  16  S.  E.  462.  WIS.— 
Hungerford  v.  Gushing,  8  Wis.  332. 
FED. — Brandon  Mfg.  Co.  v.  Prime, 
14  Blackf.  374,  Fed.  Cas.  No.  1810; 
Mercantile  Trust  Co.  v.  Atlantic 
&  P.  R.  Co.,  70  Fed.  518,  525. 

See,  also,  notes  collecting 
authorities,  50  Am.  St  Rep.  73S; 
26  L.  R.  A.   (N.  S.)   130. 

Counter-claim  as  cross-bill  in 
equity  practice. — Baunerot  v.  Mc- 
Clure,  39  Colo.  472,  12  L.  R.  A. 
(N.  S.)   126,  90  Pac.  70. 

All  who  are  interested  in  sub- 
ject matter  in  an  equitable  action 
may  be  made  parties  by  counter- 
claim or  cross-bill. — See,  McPhee 
V.  O'Rourke,  10  Colo.  301,  3  Am. 
St.  Rep.  579,  15  Pac.  420;  Denison 
V.  Jerome,  43  Colo.  456,  96  Pac. 
166. 

7  Butler  V.  Lawson,  72  Mo.  227. 

8  Morgan  v.  Morgan,  10  Ga.  297; 
Ballance  v.  Underbill,  4  111.  (3 
Scam.)   453,  461. 

"No  difference  between  a  cross- 
bill and  an  original  bill  so  far  as 
the  practice  and  proceedings  are 
concerned.     It  is,  in  fact,  a   sep- 


IGO 


ch.  IX.] 


PERSONAL  REPRESENTATIVES. 


§135 


ol)tain  jurisdiction  over  tlieir  persons  by  the  service  of 
l)rocess  as  in  an  original  action,  or  by  voluntary  appear- 
ance, only.^  To  accomplish  tliis  end,  the  names  of  the 
now  })arties  are  inserted  in  the  summons,  and  then  the 
summons,  as  liius  amended,  is  served  upon  them,  in  case 
thoy  do  not  voluntarily  appear.^® 


§  135. 


Where     personal,     representative 


BROUGHT  IN.  lu  tlioso  cascs  iu  \-  hicli  a  party  to  a  suit  dies 
after  service  of  process  is  complete,  the  substitution  of 
his  personal  representative  in  the  action  is  a  compara- 
tively simple  matter  according  to  the  California  Code  of 
Civil  Procedure  and  other  similar  procedural  codes,^ 
under  which  it  is  accomplished  by  suggesting  the  death 
of  the  party  on  the  record,  and  an  ex  parte  motion,  on 
a  showing  of  the  due  appointment  of  an  administrator  or 
the  due  qualification  of  an  executor,  procure  to  be  entered 
on  the  record  an  order  continuing  the  cause  against  such 


mate  and  distinct  suit,  commenced 
by  filing  the  bill,  which,  it  is  true, 
m;ist  be  confined  to  the  subject- 
matter  of  the  original  suit,  to 
answer  which  the  defendant  in 
the  cross-bill  must  be  brought  into 
court  in  the  same  manner  as  he 
would  be  in  any  other  case." — 
Ballance  v.  Underbill,  4  111.  (3 
Scam.)   453,  461. 

9  White  V.  Johnson,  27  Ore.  282, 
50  Am.  St.  Rep.  726,  40  Pac.  511. 

10  C  A  L.— Pico.  V.  Webster, 
14  Cal.  202,  73  Am.  Dec.  647; 
Powers  V.  Barly,  75  Cal. 
237,  17  Pac.  197.  GA.— Morgan 
V.  Morgan,  10  Ga.  297.  ILL.— 
Ballance  v.  Underbill,  4  111. 
(3  Scam.)  453;  Dunphy  v.  Riddle, 
86  111.  22;  Growl  v.  Nagle,  86  111. 
437.  IND.— Fletcher  v.  Holmes,  25 
Ind.  458.  LA.— State  v.  Burke,  37 
La.  Ann.  231.     MO. — Thompson  v. 


Allen,  86  Mo.  85.  N.  Y.— Rigney 
V.  Rigney,  127  N.  Y.  408,  24  Am. 
St.  Rep.  462,  28  N.  E.  405;  People 
ex  rel.  Rumsey  v.  Woods,  4  N.  Y. 
Super.  Ct.  Rep.  (2  Sandf.)  652,  2 
Code  Rep.  18;  Walkinshaw  v. 
Perzel,  30  N.  Y.  Super.  Ct.  Rep.  (7 
Rob.)  606,  32  How.  Pr.  310;  Akin 
V.  Albany  Northern  R.  Co.,  14 
How.  Pr.  337;  Voigt  v.  Schenck, 
54  Hun  548,  7  N.  Y.  Supp.  864. 
N.  C— McRea  v.  Guion,  55  N.  C, 
(2  Jones  Eq.)  129;  Plemmons  v. 
Southern  Imp.  Co.,  108  N.  C.  614, 
33  S.  E.  188;  Bray  v.  Creekmore, 
109  N.  C.  49,  13  S.  E.  729.  ORE.— 
White  V.  Johnson,  27  Ore.  282, 
294,  50  Am.  St.  Rep.  726,  732,  40 
Pac.  511.  FED. — Lowenstein  v. 
Glidewell,  5  Dill.  325,  Fed.  Cas. 
No.  8575. 

1  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §385;  1  Church's  Probate 
Law  and  Practice,  p.  764. 


I  Code  PI.  and  Pr.— 11 


161 


§135 


CODE  PLEADING  AND   PRACTICE. 


[Pt.  I, 


personal  representative,  and  ordering  that  lie  be  served 
with  notice  of  the  substitution  and  thus  brought  into 
court.2  A  personal  representative  is  not  made  a  party 
to  a  pending  suit  by  the  demise  of  his  decedent,  and  is 
not  affected  by  such  action  or  suit  until  duly  and  regu- 
larly substituted,  in  his  representative  character,  in  the 
place  and  stead  of  such  deceased  party.^  When  the  order 
of  continuance  and  substitution  is  duly  made,  ser\ice  of 
the  notice  of  such  substitution,  with  an  order  to  appear 
and  defend,  gives  the  court  jurisdiction  over  such  per- 
sonal representative,*  and  the  service  of  the  suimnons 
upon  him  is  unnecessary.^ 

In  absence  of  statutory  provision  to  bring  in  the  per- 
sonal representative,  resort  must  be  had  to  a  supple- 
mental complaint  and  a  summons,  in  the  usual  method.* 


2  Judson  V.  Love,  35  Cal.  463; 
Emeric  v.  Alvarado,  64  Cal.  529, 
2  Pac.  418,  3  Pac.  105;  CampbeU 
V.  West,  93  Cal.  653,  656,  29  Pac. 
219;  Allen  v.  Walter,  10  Abb.  Pr. 
(N.  Y.)  379;  Coon  v.  Knapp,  13 
How.  Pr.  (N.  Y.)  175;  Gordon  v. 
Sterling,  13  How.  Pr.  (N.  Y.)  405; 
Lyles  V.  Haskell,  35  S.  C.  391, 
14    S.   E.   829. 

Regular  to  suggest  death  of 
party  to  action  at  any  stage  of  the 
proceedings  in  a  cause,  and  death 
before  appeal  may  be  sliown  by 
affidavit  in  Appellate  Court. — Jud- 
son V.  Love,  35  Cal.  463;  Coffin  v. 
Edgington,  2  Idaho  595,  596,  23 
Pac.  80;  Wood  v.  Watson,  107 
N.  C.  52,  55,  10  L.  R.  A.  541,  12 
S.  E.  49. 

Death  of  plaintiff  during  pend- 
ency of  action,  personal  represen- 
tative may  be  substituted  as  plain- 
tiff by  ex  parte  motion,  and  cause 
thereafter  proceed  in  his  name  in 
his  representative  character,  with- 
out amendment  of  complaint  or 
the  service  of  a  new  summons  or 


amended  complaint  upon  the  de- 
fendants.—Taylor  V.  Western  Pac. 
R.  Co.,  45  Cal.  323;  Kittle  v.  Belle- 
grade,  86  Cal.  556,  25  Pac.  55; 
Thorpe  v.  Starr,  17  III.  199. 

3  Judson  V.  Love,  35  Cal.  403; 
Tinkum,  ex  parte,  54  Cal.  201,  203 ; 
First  Nat.  Bank  v.  Hotchkiss,  49 
Colo.  598,  114  Pac.  312. 

Successor  of  public  officer  not 
bound  unless  made  a  party. — ■ 
Tinkum,  ex  parte,  54  Cal.  201. 

Successor  secretary  corporation, 
not  made  party  to  suit,  not  bound 
by  judgment  of  court,  and  hence 
not  liable  to  punishment  as  for 
contempt  for  failing  to  obey  order. 
— Banter  v.  Superior  Court,  6  Cal. 
App.   196,  91  Pac.  750. 

4  McCreery  v.  Ev^rding,  44  Cal. 
284;  Judson  v.  Love,  35  Cal.  463, 
468;  Emeric  v.  Alvarado,  64  Cal. 
529,  596,  2  Pac.  418,  3  Pac.  105. 

5  Lyles  V.  Haskell,  35  S.  C.  391, 
14  S.  E.  829. 

6  Mackey  v.  Duryea,  22  Abb. 
N.   C.    (N.  Y.)    284,   6  N.   Y.   Supp. 


162 


Ch.  IX.]  PARTY  DYING  BEFORE  SERVED.  §  1  36 

Where  the  party  dies  before  service,  although  after 
issuance  of  the  summons,  or  after  service  by  publication 
is  begTin  but  before  it  is  complete,"^  a  different  situation 
arises ;  and  if  the  cause  be  continued  against  the  personal 
representative,  substituting  such  representative  and  con- 
tinuing the  action  in  his  name,  and  thereafter  a  summons, 
entitled  in  the  original  action,  and  directed  to  the  de- 
ceased, is  served  on  the  personal  representative  together 
with  a  copy  of  the  original  complaint,  and  also  wdth  a 
copy  of  the  order  of  substitution  requiring  and  a  notice 
to  the  personal  representative  to  appear,  such  summons 
and  service  does  not  comply  with  a  statute  requiring  the 
sunmions  to  contain  the  names  of  the  parties  f  and,  there- 
fore, fails  to  give  the  court  jurisdiction  of  the  personal 
representative,  or  to  render  a  judgment  that  ^\dll  bind 
the  property.^  The  original  complaint,  and  the  summons, 
must  be  amended  so  as  to  show  the  action  against  the 
personal  representative  in  his  representative  character. 

§  136.    2.  Direction  to  defendant  to  appear  and 

ANSWER.  The  California  Code  of  Civil  Procedure  further 
requires  that  the  summons  shall  direct  that  the  defendant 
appear  and  answer:  (1)  Within  ten  days,  if  the  summons 
is  served  within  the  county  in  which  action  is  brought, 
and  (2)  within  thirty  days,  if  service  is  made  elsewhere.^ 

Before  amendment  of  1897, ~  subdivision  2  of  section  407 
required  the  summons  to  state,  in  addition  to  the  time 

573;  Lyendecker  V.  Martin,  38  Tex.  ficient,    being    violative   of   Comp. 

287.  Laws    1909,    §§  5593,    5645.— State 

7  Reilly  V.  Hart,  130  N.  Y.  625,  Ex  rel.  Collins  v.  Parks,  34  Okla. 

37  Am.  St.  Rep.  540,  29  N.  E.  1099.  335,  126  Pac.  242. 

s  White  V.  Johnson,  27  Ore.  282,  Motion    to    quash    summons    for 

50  Am.  St.  Rep.  726,  110  Pac.  511.  alleged    defects,    does   not   extend 

9  Id.  the  time  specified  in  the  summons 

1  Kerr's    Cyc.     Cal.     Code    Civ.  for    answering.  —  Shinn    v.    Cum- 

Proc,  §407,  subd.  2.  mins,  65  Cal.  98,  3  Pac.  133;   Mc- 

In  Oklahoma  a  summons  issued  Donald  v.   Sweet,   76   Cal.  258,   18 

on  March  6,  returnable  March  16,  Pac.    324;    Higley    v.    Pollock,    21 

with   notice    defendant   to    appear  Nev.   198,  27  Pac.  895. 
and  answer  March  26,  held  insuf-  i'  Stats,  and  Amdts.  1897,  p.  53. 

163 


§136 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  1, 


when  the  defendant  should  appear,  the  cause  and  general 
nature  of  the  action.^  A  like  provision  requiring  a 
statement  in  summons  of  the  cause  and  general  nature  of 
the  action,  is  found  in  many  of  the  states.^  Under  such 
statutes  it  is  not  necessary  that  the  cause  and  nature  of 
the  action  be  set  forth  with  the  same  particularity  as  in 
the  complaint ;  the  information  is  required  to  be  general, 
only,  the  particular  information  being  furnished  by  the 
complaint,  and  a  substantial  compliance  with  the  require- 
ment is  all  that  is  essential  to  sufficiency.^  Such  a  provi- 
sion in  the  statute  is  to  be  construed  with  a  view  to  carry 
into  effect  its  object,  and  to  promote  justice,  and  not  to 
harass  or  annoy  litigants  and  courts  by  entertaining 
frivolous  or  technical  objections  not  going  to  the  sub- 
stantial rights  of  the  parties.^ 


3  Recovery  of  money  and  fore- 
closure of  liens,  shown  by  sum- 
mons, this  was  held  to  be  suf- 
ficient, without  showing  on  what 
property  the  liens  were,  for  what, 
or  the  nature  of  the  liens. — Bewick 
V.  Muir,  83  Cal.  368,  373,  23  Pac. 
389,  390. 

Since  amendment  of  1897  a 
statement  of  cause  and  nature  of 
action  not  required  to  be  inserted 
in  summons. — Stanquist  v.  Heb- 
bard,  122  Cal.  268,  54  Pac.  841. 

4  As  Colo.  Code,  §  31,  and  Civil 
Code,  §35;  Mont.  Code  Civ.  Proc, 
§68. 

5  Bewick  v.  Muir,  83  Cal.  368, 
373,  23  Pac.  389,  390;  Behlow  v. 
Shorb,  91  Cal.  141,  27  Pac.  546; 
Barndollar  v.  Patton,  5  Colo.  46; 
Higley  V.  Pollock,  21  Nev.  198,  27 
Pac.  895;  Hinzie  v.  Kempner,  82 
Tex.  617,  18  S.  W.  659;  Decorvet 
V.  Dolan,  7  Wash.  365,  35  Pac.  72, 
1072. 

G  Shinn  v.  Cummins,  t>5  Cal.  98. 
3  Pac.  133;  Keybers  v.  McComber, 


67  Cal.  399,  7  Pac.  838;  Bewick  v. 
Muir,  83  Cal.  368,  373,  23  Pac.  389. 
390;  Clark  v.  Gunn,  90  Cal.  504,  27 
Pac.  375;  Barndollar  v.  Patton,  5 
Colo.  49;  Kimball  v.  Castagino,  8 
Colo.  525,  9  Pac.  488;  Schuttler  v 
King,  12  Mont.  149,  30  Pac.  25; 
McPherson  v.  First  Nat.  Bank,  12 
Neb.  202,  10  N.  W.  707;  Bucklin  v. 
Strickler,  32  Neb.  602,  49  N.  W. 
371;  Higley  v.  Pollock,  21  Nev.  198, 
27  Pac.  895;  White  v.  litis,  24 
Minn.  46;  Warren  v.  Gordon,  10 
Wis.  499. 

"Action  brought  to  recover 
$726.51  evidenced  by  promissory 
note,  dated  December  1,  1873, 
which  is  more  fully  set  forth  in 
complaint,  .  .  .  together  with 
interest  and  costs  of  this  suit," 
sufficient. — Barndollar  v.  Patton, 
5  Colo.  46. 

Action  to  recover  money  alleged 
to  be  due  upon  a  particularly  de- 
scribed note,  and  to  foreclose 
mortgage  given  to  secure  same,  a 
sufficient  statement  of  general  na- 
ture  and   cause  of  action. — Deco- 


164 


fh.  rx.] 


RELIEF  DEMANDED,    NOTICE  OP. 


§  ];3i 


§  137.  3.  Notice  of  relief  to  be  demanded.  Finally, 

the  California  Code  of  Civil  Procedure  requires  that  the 
summons  shall  contain  a  notice  that,  unless  the  defendant 
appears  and  answers,  the  plaintiff  will  (1 )  take  jud^-ment 
for  any  money  or  damages  demanded  in  the  complaint  as 
arising  upon  contract,  or  (2)  will  apply  to  the  court  for 
any  relief  demanded  in  the  complaint.^  Other  states  have 
a  similar  provision  requiring  that  the  summons  shall  con- 
tain a  notice  of  the  relief  demanded,-  and  if  a  money 


vert    V.    Dolan,    7    Wash.    365,    35 
Pac.  72,  1072. 

Action  to  recover  $150,  the  value 
of  thirty  tons  of  ice  belonging  to 
plaintiff,  and  taken  possession  of 
and  disposed  of  by  defendant  at  a 
named  time  and  place,  held  a  suf- 
ficient statement  of  nature  and 
cause  of  the  action. — Sawyer  v. 
Robertson,  11  Mont.  416,  28  Pac. 
456. 

Amount  sued  for  stated  as  being 
due  on  a  policy  described  in  the 
complaint,  together  with  interest 
from  a  stated  date,  held  sufficient. 
—Tabor  v.  Gross  &  Phillips  Mfg. 
Co.,  11  Colo.  419,  18  Pac.  537. 

Cause  of  action  stated  in  sum- 
mons, and  complaint  shows  amount 
demanded,  sufficient.  —  Higley  v. 
Pollock,  21  Nev.  198,  27  Pac.  895. 
Damages  in  stated  sum  due  for 
personal  injuries  in  negligently 
operating  railroad,  sufficient.  — 
Atchison,  T.  &  S.  F.  R.  Co.  v. 
Nicholls,  8  Colo.  188,  6  Pac.  512. 

1  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc.  §  407,  subd.  3. 

Action  is  brought  to  obtain  judg- 
ment for  a  sum  stated  with  legal 
interest,  alleged  to  be  due  plain- 
tiff upon  account  and  for  cost  of 
suit,  reference  being  made  to  the 
complaint  in  the  action,  a  sufficient 
notice  as  in  relief  demanded  in  an 

IGi 


action  for  goods  sold  and  deliv- 
ered.— Behlow  v.  Shorb,  91  Cal. 
141,  27  Pac.  546. 

Notice  plaintiff  will  apply  to 
court  for  relief  demanded  in  the 
complaint,  a  copy  of  complaint 
being  served  in  copy  of  summons, 
sufficient  statement  of  or  notice 
of  relief  demanded. — Granger  v. 
Sheriff,  133  Cal.  416,  65  Pac.  873. 

"You  are  notified  that  if  you  fail 
to  appear  plaintiff  will  take  judg- 
ment against  you  for  the  relief 
demanded  in  the  complaint,"  suf- 
ficient where  a  copy  of  complaint 
is  served  with  copy  of  summons. — 
Clark  V.  Gunn,  90  Cal.  504,  27  Pac. 
375. 

2  In  a  tort  action,  notice  in  sum- 
mons that  plaintiff,  on  default,  will 
take  judgment  for  a  sum  specified 
therein,  is  fatally  defective. — Atch- 
ison, T.  &  S.  F.  R.  Co.  V.  Nicholls, 
8  Colo.  188,  6  Pac.  512. 

In  mechanics'  lien  foreclosure, 
summons  sufficient  which  states 
relief  demanded  in  complaint, 
without  statement  of  claims  of 
parties  who  afterwards  intervened. 
— Goodale  v.  Coffey,  24  Ore.  346, 
33  Pac.  990. 

Damages  demanded  not  stated 
in  summons,  but  reference  is  made 
in  summons  to  the  complaint  filed 
in    the    action,    which    does    state 


§138 


CODE  PLEADING  AND  PRACTICE. 


[Pt.I, 


demand  tlie  amount  thereof.^  These  statutes  have  all 
received  a  similar  construction  to  the  construction  given 
subdivision  3  of  section  407  of  California  Code  of  Civil 
Procedure. 


§138. 

DAMAGES 


In  ACTION   ON   CONTRACT  FOR  MONEY  OR 


In  an  action  on  a  contract  to  recover  a  specified 
sum  of  money  or  damages,  the  complaint  is  required  to 
state  the  amount  of  money  or  damages  demanded,^  and 
the  summons  must  contain  a  notice  to  the  defendant  that 


them,  is  not  fatally  defective  under 
Colorado  Code,  §  34.— Burkhardt 
V.  Ilaycox,  19  Colo.  339,  35  Pac. 
730. 

"Judgment"  omitted  before  "de- 
fault" in  summons  does  not  render 
it  fatally  defective,  provided  the 
language  is  sufficiently  clear  to  be 
properly  understood  by  the  defen- 
dant.—Kimball  V.  Castagino,  8 
Colo.  525,  9  Pac.  488. 

Notice  that  on  default  plaintiff 
"will  apply  to  the  court  for  the  re- 
lief demanded  in  the  complaint"  in 
an  action  on  a  contract  for  the 
recovery  of  money  only,  instead 
of  notifying  defendant  plaintiff 
would  take  judgment  for  a  stated 
sum,  is  not  fatally  defective  under 
Mont.  Code  Civ.  Proc,  §§  68,  245.— 
Schuttler  v.  King,  12  Mont.  149, 
30  Pac.  25,  distinguishing  Sawyer 
V.  Robertson,  11  Mont.  416,  28  Pac. 
456. 

"Will  take  judgment"  unless  de- 
fendant appears  and  answers,  is 
sufficient  under  Idaho  Rev.  Stats. 
1887,  §  4140,  subd.  5,  requiring  that 
the  summons  to  contain  a  notice 
to  defendant  that  unless  he  ap- 
pears and  answers,  plairltiff  "will 
apply  to  the  court"  for  relief  de- 
manded in  his  complaint. — Har- 
pold  v.  Doyle,  16  Idaho  671,  102 
Pac.  158. 

1 


"Will  take  judgment  for  amount 
demanded  in  the  complaint,"  is  in- 
sufficient in  an  action  for  conver- 
sion, under  Mont.  Code  Civ.  Proc, 
§  68. — Sawyer  v.  Robertson,  11 
Mont.  416,  28  Pac.  456. 

"With  interest"  without  a  state- 
ment of  the  rate  of  interest  does 
not  render  summons  fatally  defec- 
tive.— Kimball  v.  Castagino,  8  Colo. 
525,  9  Pac.  488. 

3  Omission  to  state  in  any  way 
cum  demanded,  renders  summons 
fatally  defective. — Farris  v.  Wal- 
ter, 2  Colo.  App.  450,  31  Pac.  231. 

If  summons  contains  sufficient 
to  apprise  defendant  clearly  of 
amount  claimed,  it  will  not  be 
fatally  defective,  even  though  it 
omits  to  state  the  sum  foi-  which 
plaintiff  will  take  judgment  on  de- 
fault.—Miller  v.  Zeigler,  3  Utah 
17,  23,  5  Pac.  518,  522. 

Where  copy  of  complaint  served 
with  copy  of  summons,  and  the 
copy  of  the  complaint  stated  the 
amount  for  which  judgment  would 
be  asked,  together  with  interest  at 
a  stated  rate,  it  was  held  the  sum- 
mons was  sufficient. — Higley  v. 
Pollock,  21  Nev.  198,  27  Pac.  895; 
Perezeau  v.  Spooner,  22  Nev.  88, 
35  Pac.  514. 

1  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  420,  subd.  3. 


eh.  IX.]  ON  CONTRACT  FOR  MONEY,  ETC.  §  138 

the  plaintiff,  on  default,  will  take  judgment  for  tlie  sum 
of  money  specified  in  the  complaint,  as  for  money  under 
the  contract  or  for  damages,  specif jdng  the  sum.^  But 
this  applies  in  those  cases  only  in  which  the  relief  de- 
manded is  a  specified  sum  of  money  as  such,  and  when 
the  court  is  not  called  upon  to  ascertain  or  adjudicate 
anything  other  than  the  existence  of  the  alleged  contract 
sued  on,  or  the  terms  of  that  contract,^ — e.  g.  in  actions 
for  goods  sold  and  delivered;^  for  a  simple  money  de- 
mand, where  the  plaintiif  waives  tort;^  for  liquidated 
damages  on  breach  of  contract  f  for  specific  performance 
on  breach  of  contract;'^  for  penalty  given  by  statute;^  a 
suit  on  an  undertaking  in  replevin  for  the  payment  of 
money  only,^  and  the  like.  We  have  already  noted  that  in 
any  case  in  which  money  or  damages  only  is  demanded 
the  complaint  must  state  the  amount  of  this  demand  in 
the  prayer  to  the  complaint;^*'  and  the  relief  granted  the 
plaintiff,  on  default,  can  not  exceed  the  sum  thus  nam.ed 
in  the  prayer  to  the  complaint.^^     Should  the  summons 

2  See  Jury's  Adjudicated   Forms  4  Diblee  v.  Mason,  2  Edmon.  Sel. 

of  Pleading  and  Practice,  vol.  2,  p.  Cas.   20,   1   Code  Rep.   37,    6   Leg. 

1804,  Form  No.  469.  Obs.  363. 

In  Oregon  it  has  been  held  that  5  Goff  v.  Edgerton,  18  Abb.   Pr. 

in  an  action  for  work   and  labor  (n,  y.)  381. 

done,  and  for  the  enforcement  of  g  ^^^^  p^^.^^^  rp^^j^  oj^  Cemetery 

a  mechanic's  lien,  it  is  sufficient  j^^^^^  ^  rp^jj^,.^  S  ^^^^^  pj,   (p^  y  ) 

if  the  notice  in  the  summons  says  g^^ 

"that  plaintiff  will  take  Judgment  ^^^^^^^  ^  ^^^^^^  ^^  ^  ^  ^^^^^^ 
for  a  certain  sum  specified  there- 

in."— Willamette  Falls  Transp.  &  •       ^    ' 

Milling  Co.  V.  Riley,  1  Ore.  183.  «  People  v.  Bennett,  5  Abb.  Pr. 

sTuttle    V.    Smith,    6    Abb.    Pr.  (N.  Y.)    384;    affirmed,  6  Abb.  Pr. 

(N   Y  )  329    14  How.  Pr.  395;  Peo-  343;  Albany  Board  of  Excise  Com- 

ple  V.  Bennett,  6  Abb.  Pr.  (N.  Y.)  missioners  v.  Classon,  17  How.  Pr. 

343;   Norton  v.  Cary,  14  Abb.  Pr.  (N.  Y.)  193. 

(N.    Y.)    364,    23    How.    Pr.    469;  9  Montegriffo   v.    Musti,    1    Daly 

Luling  V.  Stanton.  2  Hilt.  (N.  Y.)  (N.  Y.)  77. 

538,  8  Abb.  Pr.  378;  Cook  v.  Pome-  lo  See,  ante,  footnote  1,  this  sec- 

roy,  10  How.  Pr.  (N.  Y.)  103;  Cobb  tion. 

V.   Dunkin,    19    How.    Pr.    (N.    Y.)  n  Kerr's    Cyc.    Cal.    Code    Civ. 

164,  reversing  17  How.  Pr.  97.  Proc,  §  580. 

1G7 


§§139,140  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

fail  to  specify  the  sum  for  which  plaintiff,  on  default,  will 
take  judgment,  it  is  fatally  defective,  and  a  judgment  by 
default  has  been  held  to  be  fatally  defective  i^^  and  where 
no  other  or  further  notice  is  given  to  the  defendant  than 
that  the  plaintiff  will  take  judgment  for  a  specified  sum, 
no  other  or  further  relief  can  be  demanded  by  the  plain- 
tiff than  such  money  demand  specified  in  the  summons. ^^ 

§  139. In  all  other  actions.     In  all  other 

actions  there  shall  be  inserted  in  the  summons  a  notice 
to  the  effect  that  the  plaintiff  will  apply  to  the  court  for 
any  other  relief  demanded  in  the  complaint.^  The  notice 
in  the  summons  should,  however,  contain  a  reference  to 
the  complaint.^ 

§  140. '■ In  ACTIONS  IN  EJECTMENT.    A  SUni- 

mons  in  a  proceedings  in  ejectment,  should  contain  a  de- 
scription of  the  premises  involved  in  the  suit.^  We  have 
already  seen  that  a  defect  in  a  summons  may  be  cured  by 
the  copy  of  the  complaint  served  with  the  copy  of  the  sum- 
mons, where  the  copy  of  the  complaint  served  contains 
the  matter  which  should  have  been,  but  was  not,  incor- 
porated in  the  summons.-  Hence,  in  ejectment,  if  the 
summons  contains  no  description  of  the  demanded  prem- 
ises, other  than  a  reference  to  the  complaint  for  such 
description,  and  two  or  more  of  the  defendants  reside  in 

12  state  V.  Woodlief,  2  Cal.  241;  Mont.  495,  498-9;  Sawyer  v.  Rob- 
Porter  V.  Herman,  8  Cal.  619,  625;  ertson,  11  Mont.  416,  421,  28  Pac. 
Keybers  v.  McComber,  67  Cal.  395,  456;  Schuttler  v.  King,  12  Mont. 
398,  7  Pac.  838;  Atchison,  T.  &  149,  156,  160,  30  Pac.  25;  Sharman 
S.  F.  R.  Co.  V.  Nicholls,  8  Colo.  v.  Huot,  20  Mont.  555,  557,  63  Am. 
3  88,  191,  6  Pac.  512;  Dyas  v.  Kea-  St.  Rep.  645,  52  Pac.  558. 
ton,  3  Mont.  495,  499.  i::  Potter  v.  Herman,  8  Cal.  619, 

Mandatory   provision  of  statute  625. 

requiring   summons   to   notify   de-  i  Kerr's     Cyc.     Cal.     Code     Civ. 

fendant  of  amount  for  which  plain-  Proc,  §  407,  subd.  3. 

tiff,  on  default,  will  take  judgment,  -'  Foster    v.    Wood,    1    Abb.    Pr. 

and   a  failure  to  include  in   sum-  N.  S.  (N.  Y.)  150,  30  How.  Pr.  284. 

mons  such  notice  defeats  jurisdic-  i  Kerr's     Cyc.     Cal.     Code     Civ. 

tion  of  court  to  render  a  default  Proc,  §  750. 

judgment. — Dyas     v.     Keaton,      3  -'  See,  ante,  §  125. 

1G8 


ill.  IX.]  ACTIONS  FOR  SPECIFIC  RELIEF.  §  141 

the  same  county,  and  a  copy  of  the  summons  is  served  on 
all  the  defendants  in  that  county,  but  a  copy  of  the  com- 
plaint is  served  on  one  of  such  defendants,  only,  the  sum- 
mons is  insufficient  to  sustain  a  judgment  by  default 
against  those  defendants  not  served  with  a  copy  of  the 
complaint,  as  a  copy  of  the  complaint  together  with  a 
copy  of  the  summons  must  be  served  on  all  the  defend- 
ants,^ the  reference  in  the  summons  to  the  complaint  for 
the  description  of  the  demanded  premises  makes  the  com- 
plaint a  part  of  the  summons  for  the  purpose  of  describ- 
ing the  premises,'*  and  if  the  copy  of  the  complaint  be  not 
served  a  complete  and  a  sufficient  summons  is  not  served, 
and  the  court  acquires  no  jurisdiction  to  render  a  default 
judgment  as  against  those  defendants  upon  whom  no  copy 
of  the  complaint  was  served. 

§  141. In  actions  for  specific  relief.  In 

all  cases  in  which  the  complaint  demands  specific  relief, 
the  summons  should  notify  the  defendant  that,  on  de- 
fault, the  plaintiff  Avill  apply  to  the  court  for  the  relief 
demanded  in  the  complaint.  A  summons  for  relief  is  the 
proper  form  in  an  action  in  which  a  part  of  the  relief 
sought  is  unliquidated  damages,^  as  in  an  action  for  the 
breach  of  an  agreement  to  carry  on  business ;-  for  breach 
of  agreement  to  convey  real  property  f  in  any  action  on 
undertaldng  of  bail  ;"*  on  a  constable's  bond  y'  in  an  action 

3  Kerr's     Cyc.     Cal.     Code     Civ.      bell,  31  Cal.  239;   Houston  v.  Pike 
Proc,  §  410.  Road  Co.,  45  Cal.  550. 

4  See,  ante,  §  125.  As  to  necessity  of  jury  to  com- 
1  Hartman    v.    Williams,    4    Cal.      pute  damages  on  default  judgment, 

254;  .Johnson  v.  Vance,  86  Cal.  110,  see  note  20  L,  R.  A.  (N.  S.)  7. 

114,  24  Pac.  862.  li  Tuttle    v.    Smith,    6    Abb.    Pr. 

"No  issue  as  to  tlie  damages  al-  (N.  Y.)  329,  14  How.  Pr.  395. 

leged   to  have  been  sustained   by  3  Johnson  v.   Paul,   14  How.   Pr. 

the    plaintiff,    no    proof   upon    the  (N.  Y.)  454,  6  Abb.  Pr.  335,  note, 

subject  was  therefore  required." —  4  Kelsey  v.  Covert,  15  How.  Pr. 

Johnson  v.  Vance,  86  Cal.  110,  114,  (N.  Y.)   92,  6  Abb.  Pr.  336,  note; 

24    Pac.    862,    citing    Hartman    v.  Levy    v.    Nicholas,    15    Abb.     Pr. 

Williams,  4  Cal.  254;   Patterson  v.  (N.  Y.)  63,  note. 

Ely,  19  Cal.  29;    Dimick  v.  Camp-  r,  New   York,   City  of,  v.  Lyons, 

169 


§141 


CODE   PLEADING   AND   PRACTICE, 


[Pt.  r, 


for  breach  of  warranty;*'  in  actions  for  conversion;^  in 
actions  for  an  account  of  moneys  collected.^  Where  an 
allegation  of  a  mistake  on  a  former  accounting,  and  a 
demand  for  a  new  accounting,  is  contained  in  the  com- 
plaint, the  summons  is  properly  for  relief  f  also  in  an  ac- 
tion against  a  carrier  for  loss  of  goods  ;^'^  or  for  breach  of 
contract  to  transport  goods  ;^^  for  unliquidated  damages 
generally;^-  for  liquidated  and  unliquidated  damages. ^■'^ 
In  actions  for  fraud,  the  summons  must  apprise  the  de- 
fendant that  on  failure  to  answer  judgment  will  be  taken 
against  him  for  the  fraud;  a  mere  notice  that  a  money 
judgment  will  be  taken  against  him  will  not  support  a 
judgTQeut  for  fraud, ^^  or  to  open  an  account  on  the  ground 
of  mistake  ;^^  as  for  damages  for  death  by  a  wrongful 
act;^^  or  on  breach  of  contract  to  convey;^'  or  for  breach 
of  contract  to  marry.^* 


1  Daly   (N.  Y.)    296,   24  How.  Pr. 
280. 

6  Dunn  V.  Bloomingdale,  14  How. 
Pr.  (N.  Y.)  474,  6  Abb.  Pr.  340, 
note. 

7  Voorhies  v.  Scofield,  7  How.  Pr. 
(N.  Y.)  51;  Ridder  v.  Whitlock,  12 
How.  Pr.  (N.  Y.)  208.  . 

s  West  V.  Brewster,  8  N.  Y. 
Super.  Ct.  Rep.  (1  Duer)  647,  11 
Leg.  Obs.  157. 

9  McDougall  V.  Cooper,  31  N.  Y. 
498. 

10  Campbell  v.  Perkins,  4  Seld. 
(N.  Y.)  438;  Hewitt  v.  Howell,  8 
How.  Pr.  (N.  Y.)  346. 

11  Luling  V,  Stanton,  2  Hilt. 
(N.  Y.)  538,  8  Abb.  Pr.  378. 

iii  Croden  v.  Drew,  10  N.  Y. 
Super.  Ct.  Rep.  (3  Duer)  652,  654; 
Luling  V.  Stanton,  2  Hilt.  (N.  Y.) 
538,  8  Abb.  Pr.  378;  People  v.  Ben- 
nett, 6  Abb.  Pr.  (N.  Y.)  343; 
Salters  v.  Ralph,  15  Abb.  Pr. 
(N.    Y.)    273;    Cobb    v.    Dukin,    19 

1 


How.  Pr.  (N.  Y.)  164,  reversing  17 
How.  Pr.  97. 

13  Norton  v.  Cary,  14  Abb.  Pr. 
(N.  Y.)  364,  23  How.  Pr.  469; 
Hartshorn  v.  Newman,  15  Abb.  Pr. 
(N.  Y.)  63;  Hanson  v.  Decker,  29 
How.  Pr.  (N.  Y.)  385. 

14  Porter  v.  Herman,  8  Cal.  619. 
See  Southern  R.  Co.  v.  Bunt,  131 
Ala.  596,  32  So.  509;  Hartshorn  v. 
Newman,  15  Abb.  Pr.  (N.  Y.)  63; 
Field  V.  Morse,  7  How.  Pr.  (N.  Y.) 
12;  Travis  v.  Tobias,  7  How.  Pr. 
(N.  Y.)  90. 

15  McDougall  v.  Cooper,  31  N.  Y. 
498. 

10  Doedt  v.  Wiswell,  15  How.  Pr. 
(N.  Y.)  128;  affirmed,  15  How.  Pr. 
145. 

17  Johnson  v.  Paul,  6  Abb.  Pr. 
(N.  Y.)  335,  note,  14  How.  Pr.  454; 

18  McDonald  v.  Walsh,  5  Abb. 
Pr.  (N.  Y.)  68;  Davis  v.  Bates.  6 
Abb.  Pr.  (N.  Y.)  15;  McNeff  v. 
Short,  14  How.  Pr.  (n!  Y.)   463. 

70 


ell.  IX.]  alte;:xati\l:  ok  vvkuxg  relief.  §  142 

§  142. Alternative  relief — Wrong  re- 
lief. The  wording  of  subdivision  3  of  section  407,  given 
above/  may  be  misleading  to  some  in  that  it  does  not  state 
as  fully  and  distinctly  as  it  could  have  done — clarity  be- 
ing sacrificed  to  brevity — that  the  summons  is  to  give 
notice  of  one  of  two  things  therein  provided,  and  not  of 
both;  that  is  to  say,  that  the  summons  shall  notify  the  de- 
fendant specifically  which  of  the  two  forms  of  relief  is  de- 
manded, and  that  it  shall  not  include  a  notice,  in  the  alter- 
native, of  both  reliefs  provided  for.  The  matter  has  been 
carried  to  the  Supreme  Court  on  different  angles,  and 
has  there  been  decided,  and  very  properly  decided,  tluit 
the  notice  given  the  defendant  need  not  be  in  the  alterna- 
tive in  order  to  comply  with  the  requirement  of  the  code, 
it  being  sufficient  to  notify  the  defendant  simply  that  the 
plaintiff  'Svill  apply  to  the  court  for  the  r(!lief  demanded 
in  the  complaint"  where  the  action  is  other  than  one  on  a 
contract  demanding  simply  a  specified  sum  of  money  or 
damages.^  But  it  has  also  been  decided — without  such 
cogent  reasoning — that  a  summons  is  not  insufficient 
because  it  contains  a  notice  to  the  defendant,  in  the  alter- 
native, including  both  reliefs  provided  for  in  the  statute, 
without  specifying  which  one  plaintiff  will  resort  to.^  In 
states  having  substantially  the  same  provision  as  to  the 
notice  to  be  given  the  defendant  by  the  summons,  as  that 
found  in  the  California  statute,  it  has  been  held  that  it  is 
not  a  fatal  defect  where  the  summons  gives  the  defendant 
notice  of  the  wrong  alternative  relief,  in  that  the  com- 
plaint is  on  a  contract  for  a  specified  sum  of  money  or 
damages,  and  the  summons  notifies  defendant  that  the 
plaintiff  ''will  apply  to  the  court  for  the  relief  demanded 
in  the  complaint."^    This  rule  can  work  no  hardship  in 

1  See,  ante,  §  137.  4  Schuttler  v.  King,  12  Mont.  149, 

2  Granger  v.  Sheriff,  133  Cal.  416,      30  Pac.  25,  distinguishing  Sawyer 
65  Pac.  873.  v.  Robertson,  11  Mont.  416,  28  Pac. 

3  Stanquist  v.  Hebbard,  122  Cal.      456. 
268,  54  Pac.  841. 

171 


§143 


CODE   PLEADING   AND   PRACTICE. 


[Ft.  1, 


those  cases  and  jurisdictions  in  which  a  copy  of  the  com- 
plaint is  served  with,  a  copy  of  the  summons  f  but  in  those 
cases  and  jurisdictions  in  which  no  copy  of  the  complaint 
is  served,  or  the  summons  is  served  before  the  complaint 
is  filed — as  is  the  case  in  some  of  the  jurisdictions  having 
the  reformed  procedure — it  is  essential  that  the  summons 
state  with  precision  and  particularity  the  nature  of  the 
relief  that  will  be  demanded  of  the  court,  and  a  mistake 
in  the  particularization  of  that  relief,  it  has  been  held, 
renders  the  summons  fatally  defective.'' 


§  143. 


Amending  summons.  We  have  already  seen 


that  a  defective  summons  may  be  cured  by  the  serving  of 
a  copy  of  the  complaint,  where  the  complaint  contains  the 


5  "It  is  necessarily  wholly  imma- 
terial, and  can  not,  in  the  nature 
of  things,  affect  a  substantial  right 
of  the  defendant,  whether  a  sum- 
mons is  under  the  first  or  second 
subdivision  of  Section  129"  of  the 
New  York  Code  of  Procedure, 
"when  a  copy  of  the  complaint 
.  .  .  is  served  with  the  sum- 
mons. The  office  of  the  summons 
is  to  bring  the  defendant  into  court 
and  to  give  the  court  jurisdic- 
tion of  the  person.  .  .  This  is 
the  effective  process  to  subject  the 
defendant  to  the  jurisdiction  of  the 
court.  The  subsequent  section, — 
section  129, — directs  the  insertion 
of  a  notice  in  the  summons,  in  ac- 
tions on  contract  for  the  recove''y 
of  money  only,  that  judgm.ent  will 
be  taken  for  a  specified  sum  on 
failure  of  the  defendant  to  answer; 
and,  in  other  actions,  that  applica- 
tion will  be  made  to  the  court  for 
the  relief  demanded.  .  •  .  .  The 
purpose  of  the  notice  required  by 
section  129  is  to  inform  the  defen- 
dant of  the  character  of  the  action 
and  the  consequences  of  a  default. 


that  he  may  understandingly  de- 
termine whether  the  protection 
and  preservation  of  his  rights  call 
for  an  appearance  and  answer. 
But,  if  the  complaint  is  served 
with  the  summons,  the  defendant 
has  more  full  and  perfect  knowl- 
edge of  the  cause  of  action  and 
the  consequences  of  a  default  than 
he  could  get  from  the  summons 
alone,  and,  if  there  is  an  error  or 
defect  in  the  summons,  it  carries 
with  it  the  remedy  and  corrections 
and  an  effectual  preventive  against 
error  by  any  one." — Allen,  J.,  in  Mc- 
Coun  V.  New  York  C.  «&  H.  River 
R.  Co.,  50  N.  Y.  176,  dismissing 
appeal  from  7  Lans.  75.  See  First 
Nat.  Bank  of  Joseph  v.  Rusk,  64 
Ore.  35,  44  L.  R,  A.  (N.  S.)  138, 
129  Pac.  121. 

Respecting  notice  of  manner  of 
obtaining  judgment,  see  note  44 
L.  R.  A.  (N.  S.)   142. 

0  Brown  v.  Eaton,  37  How.  Pr. 
(N.  Y.)  325. 

As  to  notice  regarding  manner  of 
obtaining  Judgment,  see  44  L.  R.  A, 
(N.  S.)  142. 


172 


ch.  IX.] 


AMENDMENT  OF  SUMMONS. 


§143 


matters  whicli  should  have  been,  but  were  not,  incorpo 
rated  into  the  summons.^  It  remains  but  to  add  here  that 
every  court  has  inherent  power  to  amend  and  control  its 
processes,  orders  and  proceedings,  so  as  to  make  them 
conformable  to  law  and  justice;-  provided,  only,  that 
there  shall  be  a  process,  order  or  proceedings  to  be 
amended.  In  other  words,  any  voidable  process,  order 
or  proceedings  may  be  amended,^  but  a  process,  order  or 
proceeding  which  is  void,  may  not  be  amended.*  That  is 
to  say,  there  must  be  something  to  amend  and  amend  by."* 


1  See,  ante,  §  125. 

2  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  128,  par.  8. 

Full  power  to  amend  process 
pending  its  service. — Baldwin  v. 
Foster,  157  Cal.  643,  647,  108  Pac. 
714. 

— Order  for  amendment  pre- 
sumed wliere  nothing  to  the  con- 
trary is  shown,  the  record  being 
silent  regarding  such  an  order. — 
Dowling  V.  Comerford,  99  Cal.  204, 
33  Pac.  853;  Baldwin  v.  Foster,  157 
Cal.  643,  647,  108  Pac.  714. 

Has  control  over  its  process,  and 
should  permit  amendment  in  the 
interest  of  justice,  especially  when 
the  party  complaining  can  show  no 
injury  resulting  from  such  amend- 
ment.— Marvin  v.  Eng-Skell  Co.,  33 
Cal.  App.  42,  164  Pac.  334. 

As  to  amending  process,  see 
notes  52  Am.  St,  Rep.  608,  63  Am. 
St.  Rep.  649,  71  Am.  St.  Rep.  242, 
72  Am.  St.  Rep.  935. 

3  Durham  v.  Heaton,  28  111.  264, 
81  Am.  Dec.  275;  State  v.  Hall,  78 
Me.  37,  2  Atl.  546;  Bobb  v.  Dillon, 
20  Mo.  App.  309;  Parker  v.  Barker, 
43  N.  H.  35,  80  Am.  Dec.  130;  Coyle 
Mercantile  Co.  v.  Nix,  7  Okla.  267, 
54  Pac.  469;  Starkey  v.  Lunz,  57 
Ore.  151,  Ann.  Cas.  1912D,  783,  110 


Pac.  702;  Miller  v.  Zeigler,  44  W. 
Va.  484,  67  Am.  St.  Rep.  777,  29 
S.  E.  981. 

Defective  affidavit  in  attachment 
may  be  amended. — Coyle  Mercan- 
tile Co.  v.  Nix,  7  Okla.  267,  54  Pac. 
469. 

Erroneous  execution  may  be 
amended. — Bobb  v.  Dillon,  20  Mo. 
App.  309. 

Even  after  sale. — Lewis  v.  Lind- 
ley,  28  111.  147;  Mooney  v.  Mor- 
iarty,  36  111.  App.  175;  Kipp  v.  Bur- 
ton, 29  Mont.  96,  101  Am.  St.  Rep. 
544,  63  L.  R.  A.  325,  74  Pac.  85. 

4  Choate  v.  Spencer,  13  Mont. 
127,  40  Am.  St.  Rep.  425,  20  L.  R.  A. 
424,  32  Pac.  651;  Sharman  v.  Huot, 
20  Mont.  555,  63  Am.  St.  Rep.  645, 
52  Pac.  558;  Farrell,  In  re,  36  Mont. 
262,  92  Pac.  785;  White  v.  Taylor. 
46  Tex.  Civ.  App.  473.  102  S.  W. 
747;  Coda  v.  Thompson,  39  W.  Va. 
67,  19  S.  E.  548;  Goodman  v. 
Henry,  42  W.  Va.  526,  35  L.  R.  A. 
847,  26  S.  E.  528. 

Void  attachment  may  not  be 
amended. — Goodman  v.  Henry,  42 
W.  Va.  526,  35  L.  R.  A.  847.  26  S.  E. 
528. 

5  Witherell  v.  Randall,  30  Me. 
168;  .Joiner  v.  Delta  Bank,  71  Miss. 
382,  14  So.  464;  Sharman  v.  Huot, 
20  Mont.  555,  63  Am.  St.  Rep.  645, 

73 


§143 


CODE  PLEADING  AND   PRACTICE. 


[Pt.  i, 


The  court  may  allow  the  summons  to  be  amended  by  in- 
serting a  notice  to  the  defendant  of  the  nature  of  the 
demand,  and  that  unless  he  appear  and  answer  within  the 
time  specified,  judgment  by  default  will  be  taken  against 
him.''  But  amendments  can  only  be  made  by  order  of  the 
court  upon  motion."  Sheriffs  have  no  right,  after  making 
a  return,  to  amend  it  so  as  to  affect  rights  which  have 
already  vested  in  third  parties.^  But  courts  should  exer- 
cise great  liberality  in  allowing  sheriffs  to  amend  so  as 
to  make  returns  conform  to  facts,  and  to  correct  errors 
and  mistakes,^  even  after  sheriff  has  gone  out  of  office.^" 
In  North  Dakota,  el  summons,  otherwise  in  due  form,  in 
which  the  defendants  are  designated  by  their  firm  name 
only,  is  irregular,  but  not  absolutely  void,  and  may  be 


52  Pac.  558;  United  States  v.  Tur- 
ner, 50  Fed.  734. 

6  Pollock  V.  Hunt,  2  Cal.  194; 
Pierse  v.  Miles,  5  Mont.  549,  552, 
6  Pac.  347;  Sweeney  v.  Schultes, 
19  Nev.  53,  56,  6  Pac.  44,  8  Pac. 
768. 

Amendment  of  summons  to  con- 
form to  law,  is  always  permissible. 
— Pierse  v.  Miles,  5  Mont.  549,  552, 
6  Pac.  347. 

T  McCrane  v.  Moulton,  5  N.  Y. 
Super.  Ct.  Rep.  (3  Sandf.)  736,  1 
Code  Rep.  N.  S.  157;  Allen  v.  Allen, 
14  How.  Pr.  (N.  Y.)  248. 

"Courts  have  power  to  amend 
their  process  and  records,  notwith- 
standing such  amendment  may  af- 
fect existing  rights."— Green  v. 
Cole,  35  N.  C.  (13  Ired.  L.)  425, 
quoted  approvingly  in  Tilton  v. 
Cofield,  93  U.  S.  163,  169,  23  L.  Ed. 
858,  859. 

Officer's  return  may  be  amended 
to  correspond  with  the  facts,  in 
affirmance  of  judgment,  but  never 
to  defeat  the  judgment— Chicago 
Planing  Mill  Co.  v.  Merchants'  Nat. 


Bank,  97  111.  294;  Montgomery  v. 
Merrill,  36  Mich.  97;  Dunham  v. 
Wilfong,  69  Mo.  355;  Mills  v.  How- 
land,  2  N.  D.  30,  49  N.  W.  413. 

s  Newhall  v.  Provost,  6  Cal.  85, 
87;  Webster  v.  Haworth,  8  Cal. 
20,  25,  68  Am.  Dec.  287;  McGarth 
v.  Wallace,  116  Cal.  548,  553,  48 
Pac.  719;  Chicago  Planing  Mill  Co. 
v.  Merchants'  Nat.  Bank,  97  111. 
294,  300;  Stewart  v.  Stringer,  45 
Mo.  116;  Renick  v.  Ludington,  20 
W.  Va.  511;  French  v.  Edwards,  5 
Sawy.  266,  274,  Fed.  Cas.  No.  5098: 
Rickards  v.  Ladd,  6  Sawy.  40,  Fed. 
Cas.  No.  11804. 

As  to  effect  of  amendment  to 
return  of  writ,  see  note  13  Am. 
Dec.  180. 

0  Gavitt  v.  Doub,  23  Cal.  78,  79, 
81,  82,  affirming  Borland  v.  O'Neal, 
22  Cal.  504;  People  v.  Goldenson, 
76  Cal.  328,  345,  19  Pac.  161;  Irons 
V.  Keystone  Mfg.  Co.,  61  Iowa  406, 
408,  16  N.  W.  349;  Richards  v. 
Ladd,  6  Sawy.  40,  46,  Fed.  Cas.  No. 
11804. 

10  Pacific  Tel.  Cable  Co.  v. 
Fleischner.  66  Fed.  899,  905. 


174 


ch.  IX.]  AMENDMENT  OF  SUMMONS.  §  143 

amended  in  the  trial,  court  so  as  to  show  the  names  of  the 
partners,  and  such  a  summons,  when  issued,  is  sufficient 
to  sustain  an  attachment. ^^ 

In  IdaJiop  the  trial  court  may  order  a  defective  sum- 
mons so  amended  as  to  conform  to  the  requirements  of 
the  statute  and,  after  so  amending,  may  order  the  sum- 
mons withdrawn  from  the  files  and  served.^^ 

11  Gans  V.  Beasley,  4  N.  D.  140,  Idaho  472,  125  Am.  St.  Rep.  175,  94 
59  N.  W.  714.  Pac.  827;   Empire  Mill  Co.  v.  Dis- 

12  Idaho  Revised  Codes,  §  3862.         Irict  Court,  27  Idaho  383,  149  Pac. 
isRideubaugh    v.    Sandlin,    14     499. 


175 


CHAPTER  X. 

PROCEEDINGS  TO   OBTAIN   JURISDICTION SERVICE   OF   PROCESS. 

1.  Introductory. 

§  144.  In  general. 

§  145.  Identity  of  name  and  person. 

§  146.  False  name. 

§  147.  Fictitious  name. 

§  148.  "Personal  service"  defined. 

§  149.  ' '  Duly  served, ' '  meaning  of. 

§  150.  Service  actual  performance — Keservice. 

2.  Authority  or  Capacity  to  Serve. 

§  151.    In  general. 

§  152.    By  sheriff — In  general. 

§  153.    By  his  deputy. 

§  154.    Effect  of :  Return. 

§  155_ Sufficiency  of  return— Several  defendants. 

§  156^ False  return— Effect  of. 

§  157. "Law  of  the  land":  "Due  process  of 

law." 

§158, Relief  from  false  return— 1.  In  gen- 
eral :  Kentucky  statute. 

§  159. 2.  Motion  to  vacate  judgment. 

§160. 3.  Suit  in  equity  to  vacate  or 

enjoin. 

§161 Conditions     precedent     to 

relief. 

§  162. 4.  Action  against  sheriff  on  bond. 

§163. Loss  of  right. 

§  164.    By  person  other  than  sheriff— Affidavit  of  service. 

§  165. Amendment  of  affidavit. 

3.    Upon  Whom  Service  to  Be  Made. 
§  166.    In  general. 
§  167.    Domestic  corporation. 

§  168.    Construction  of  statute — Instances. 

J. '6 


ell.  X,]  SERVICE  OF  PROCESS. 

§  169.  Foreign  corporation. 

§  170.  Construction  of  statute — Instances. 

§  171. ' '  Managing  agent. ' ' 

§  172.  Foreign    corporation    not    in    business    within 

state — Officer  or  agent  casually  within  state. 

§  173.  Municipal  corporation. 

§  174.  Infant  or  minor  under  fourteen  years  of  age, 

§  175. Action  by  father  against. 

§  176.  Insane  or  otherwise  incompetent  person. 

§  177.  Joint  association. 

§  178.  Joint  and  several  debtors. 

§  179.  Executor  or  administrator. 

§  180.  Nonresident  defendant. 

4.   ]\roDE  OP  Service  of  Process  and  Sufficiency  Thereof, 

§  181.    In  general. 

§  182.    Personal  service — In  general. 

§  183.    How  made — By  delivery. 

§  184. By  reading. 

§185. By  telegraph. 

§  186.    Out  of  jurisdiction. 

§  187.    Constructive  or  substituted  service — In  general. 

§  188.    1.  By  leaving  copy — Kansas. 

§189. Oregon. 

§190. Utah. 

§191. Washington. 

§  192.    2.  By  mail,  registered  or  otherwise. 

§  193.    3.  By  publication — In  general. 

§  194. In  California — In  general. 

§  195. Affidavit  for  order  of  publication — 

Necessity  for. 

§  196. General  requisites  of. 

§  197. Must  state  probative,  not  ulti- 
mate facts. 

§  198. On  infant  or  minor. 

§199. Order  of  publication — What  to  con- 
tain. 

§  200. Change  in  summons  not  permis- 
sible. 

§  201. Depositing  in  post-office. 

I  Code  PI.  and  Pr.— 12  ^77 


§144 


CODE  PLEADING  AND  PRACTICE. 


(Pt.  I, 


§202. 
§203. 

§204. 
§205. 
§206. 


Affidavit  of  depositing  in  mail. 

Affidavit  of  publication — By   whom 

to  be  made. 
Publication  sufficient  when. 
Publication  conclusive  when. 
Time  within  w^hieh  to  appear  after 

publication. 


Copies 


5.  Time  and  Place  op  Service  op  Summons. 

§  207.    Time  of  service — In  general. 

§  208.    In  California. 

§209. On  Sunday. 

§  210.    Place  of  service — California  doctrine. 

6.  Serving  Copy  op  Complaint  Instead  op  Process; 

wiTPi  Process. 
§  211.    Serving  complaint  instead  of  process. 
§  212.    Serving  copy  of  complaint  with  process. 

7.  Service  Procured  by  Fraud. 

§  213.    In  general. 


1.   Introductory. 

§  144.  In  general.  In  California/  Utah,^  and  perhaps 
olsewliere,  a  summons  must  be  issued  within  a  year  from 
the  date  on  which  the  complaint  was  filed.  After  the 
summons  has  been  issued  by  the  clerk,  the  next  step,  in 
California,  is  to  have  it  served  on  the  defendant,  together 
with  a  copy  of  the  complaint;^  and  if  this  service  is  not 
had  within  a  year  from  the  date  of  the  filing  of  the  com- 
plaint, the  clerk  loses  the  power  to  issue  an  alias^  sum- 
mons f  but  the  court  may,  at  any  time  within  three  years, 


1  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  581a,  Consol.  Supp.  1906- 
1913,  p.  1525. 

2  Utah  Comp.  Laws,  1888,  §  3203. 

3  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  410. 

Colorado  practice,  under  stat- 
ute 1885,  did  not  require  service 
of    copy    of    complaint    unless 


demanded  by  defendant;  and  when 
demanded,  service  thereof  essen- 
tial to  set  in  running  time  within 
which  answer  must  be  filed. — Gwil- 
lim  V.  First  Nat.  Bank,  13  Colo. 
278,  22  Pac.  458. 

4  As    to    alias    and    pluris    sum- 
monses, see,  ante,  §  126. 

5  Kerr's    Cyc.    Cal,    Code     Civ. 
Proc,  §  408. 


eh.  X.] 


SERVICE  OF  PROCESS,  GENERALLY. 


§1-14 


order  the  returned  summons  to  be  served,  or  direct  the 
issuance  of  a  new  summons  for  that  purpose.^  But  tliis 
large  latitude  as  to  time  is  a  matter  of  due  diligence  on 
the  part  of  the  plaintiff  to  obtain  service"  and  of  a  sound 
judicial  discretion  on  the  part  of  the  court  to  promote  tlio 
ends  of  justice,  subject  to  reversal  for  an  abuse  of  that 
discretion.^  The  power  of  the  trial  or  nisi  prius  court  to 
dismiss  a  cause  for  failure  to  prosecute  by  neglecting 
unreasonably  to  procure  a  service  of  the  summons  upon 
the  defendant,  is  established  by  an  unbroken  line  of  de- 
cisions in  this  state  ;^  but  where  the  delay  hr.s  been  at  the 


<J  Rue  V.  Quinn,  137  Cal.  651,  658, 
66  Pac.  216,  70  Pac.  732;  Hibernia 
Sav.  &  L.  Soc.  V.  Cochran,  141  CaL 
653,  658,  75  Pac.  315. 

This  doctrine  based  on  code  pro- 
vision that  "when  a  complete  de- 
termination of  the  controversy  can 
not  be  had  without  the  presence  of 
other  parties,  the  court  must  then 
order  them  to  be  brought  in." — See 
Kerr's  Cyc.  Cal.  Code  Civ.  Proc, 
§389. 

"This  implies  a  power  in  the 
court,  whenever  this  fact  shall  be 
brought  to  its  potice,  either  to 
order  the  summons  that  has  been 
returned  to  be  served  upon  the  de- 
fendants therein  named,  if  they 
have  not  been  already  served,  or 
to  issue  a  new  summons  for  that 
puij^ose." — Harrison,  J.,  in  Rue  v. 
Quinn,  ante. 

It  is  thought  the  doctrine  can  be 
more  properly  based  upon  Code 
Civ.  Proc,  §  581a.— Kerr's  Cyc.  Cal. 
Codes,  Consol.  Supp.  1906-1913,  p. 
1525. 

Discretionary  power  to  dismiss 
for  delay  in  serving  summons, 
even  though  the  delay  is  shorter 
than  the  period  of  three  years 
named  in  §  581a. — Witter  v.  Phelps, 
163    Cal.    655,    657,    126    Pac.    593, 


citing  Kreiss  v.  Hotaling,  99  Cal. 
383,  33  Pac.  1125;  Stanley  v.  Gil- 
len,  119  Cal.  177,  51  Pac.  183;  Fer- 
ris V.  Wood,  144  Cal.  426,  77  Pac. 
1037;  Marks  v.  Keenan,  148  Cal. 
161,  82  Pac.  772;  Bernard  v.  Par- 
melee,  6  Cal.  App.  545,  92  Pac. 
658. 

Not  three  years  from  expiration 
of  one  year  in  which  summons 
must  issue,  but  from  the  time  of 
the  commencement  of  the  action. 
— Bernard  v.  Parmelee,  6  Cal.  App. 
537,  545,  92  Pac.  658. 

Secretion  to  prevent  service,  by 
the  defendant,  may  be  shown  in 
justification  of  failure  to  serve  for 
more  than  three  years;  but  where 
evidence  conflicting  dismissal  not 
disturbed. — Wilson  v.  Leo,  19  Cal. 
App.  793,  796,  127  Pac.  1043. 

7  As  to  degree  of  diligence  re- 
quired of  plaintiff  in  service  of 
summons,  see  Murray  v.  Gleeson, 
100  Cal.  511,  35  Pac.  88;  First  Nat. 
Bank  v.  Nason,  115  Cal.  626,  628, 
47  Pac.  595. 

8  Murray  v.  Gleeson,  100  Cal. 
511,  513,  35  Pac.  88;  First  Nat. 
Bank  v.  Nason,  115  Cal.  626,  628, 
47  Pac.  595. 

!>  Dupuy    V.    Shear,    29    Cal.    238, 
242;  Reynolds  v.  Page,  35  Cal.  296, 
79 


U44 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I. 


instance  or  request  of  the  defendant,  the  court  properly 
refuses  a  dismissal.^"  Thus,  it  has  been  held  that  allowing 
an  action  to  rest  without  serving  the  summons  for  one 
year,^^  one  year  and  six  months,^-  one  year  and  nine 
months, ^^  one  year  and  eleven  months, ^^  two  years, ^^  two 
years  and  two  months,^*'  two  years  and  three  months — 
with  knowledge  of  w^hereabouts  of  defendant,^'  two  years 
and  eight  months, ^'^  three  years^*^  and  more-",  eight 
years — though  lost,-^  and  nine  years,--  after  summons  is 
issued,  is  such  want  of  diligence  as  justifies  a  court  in  dis- 
missing the  action.  Where  notice  of  motion  is  given  of 
a  motion  to  dismiss  an  action  for  want  of  prosecution 
before  summons  is  served,  and  the  plaintiff  then  serv^es 
the  summons,  and  at  the  end  of  ten  days  takes  a  default, 
but  judgment  is  not  entered  up,  the  entry  of  the  default 


300  (Rhodes,  J.,  dissenting) ;  Grigs- 
by  V.  Napa  County,  36  Cal.  585,  95 
Am.  Dec.  213;  Carpentier  v.  Min- 
turn,  39  Cal.  450;  Eldridge  v.  Kay, 
45  Cal.  49,  51;  Lauder  v.  Fleming, 
47  Cal.  614,  616;  Diggins  v.  Thorn- 
ton, 96  Cal.  417,  31  Pac.  289;  Kreiss 
V.  Hotaling,  99  Cal.  383,  385,  33 
Pac.  1125;  Castro  v.  San  Francisco, 
City  of,  4  Cal.  Unrep.  500,  35  Pac. 
1035;  First  Nat.  Bank  v.  Nason, 
115  Cal.  626,  628,  47  Pac.  595;  W^it- 
ter  V.  Phelps,  163  Cal.  655,  656, 
126  Pac.  593;  Mori  v.  Mori,  171 
Cal.  79,  151  Pac.  1136;  Wilson  v. 
Leo,  19  Cal.  App.  793,  796,  127  Pac. 
1043. 

to  Cowell  V.  Stewart,  69  Cal.  525, 
11  Pac.  57;  First  Nat.  Bank  v. 
Nason,  115  Cal.  626,  628,  47  Pac. 
595. 

11  Reynolds  v.  Page,  35  Cal.  296, 
300  (Rhodes.  J.,  dissenting),  and 
distinguishing  Dupiiy  v.  Shear,  29 
Cal.  238. 

12  First  Nat.  Bank  v.  Nason,  115 
Cal.  626,  628,  47  Pac.  595. 


13  Mori  V.  Mori,  171  Cal.  79,  151 
Pac.  1136. 

Discretion  not  abused  in  re- 
fusing to  dismiss. — McDonald  v. 
Sweet,  76  Cal.  257,  18  Pac.  324. 

14  Kreiss  v.  Hotaling,  99  Cal. 
383,  385,  33  Pac.  1125. 

15  Grigs  by  v.  Napa  County,  36 
Cal.  585,  95  Am.  Dec.  213;  Castro 
V.  San  Francisco,  City  of,  4  Cal. 
Unrep.  500,  35  Pac.  1035. 

16  Lander  v.  Fleming,  47  Cal. 
614,  616. 

17  Witter  V.  Phelps,  163  Cal.  655, 
656,  126  Pac.  593. 

isGrigsby  v.  Napa  County,  36 
Cal.  585,  95  Am.  Dec.  213. 

19  Eldridge  v.  Kay,  45  Cal.  49,  51. 

20  Wilson  V.  Leo,  19  Cal.  App. 
793,  796,  127  Pac.  1043. 

21  Carpentier  v.  Minturn,  39  Cal. 
450. 

22  Dupuy  V.  Shear.  29  Cal.  238, 
242;  Diggins  v.  Thornton,  96  Cal. 
417,  31   Pac.  289. 


]80 


ell.  X.]  IDENTITY  OF  NAME  AND  PERSON.  §  145 

does  not  preclude  the  court  from  dismissing  the  action, 
the  dismissal  taking  effect  by  relation  back  to  the  time  of 
the  service  of  the  motion.-^  The  California  Code  of  Civil 
Procedure-^  and  most  of  the  procedural  codes  provide 
that  when  the  action  is  against  two  or  more  defendants 
jointly  or  severally  liable  on  a  contract,  and  the  summons 
is  served  on  one  or  more,  but  not  on  all  of  them,  the  plain- 
tiff may  proceed  against  the  defendants  served  in  the 
same  manner  as  if  they  were  the  only  defendants.--^  When 
there  are  more  than  one  defendant  in  an  action  and  one 
or  more  admit-"  "due  service"  of  summons  in  an  action 
against  them  and  others,  the  court  thereby  acquired  juris- 
diction of  them,  and,  as  to  them,  any  judgment  rendered 
in  the  cause  will  be  valid,-'  if  otherwise  regular  and 
sufficient. 

§  145.  Identity  of  name  and  person.  Identity  of  name 
raises  presumption  of  identity  of  person,  even  in  a  com- 
munity in  which  there  are  several  persons  of  the  same 
name;  hence  it  follows  that  when  a  summons  is  served 
upon  a  person  bearing  the  same  name,  or  substantially 
the  same  name,^  as  the  name  of  the  defendant  in  the  com- 
plaint and  summons,  the  party  thus  served  is  put  under 
the  legal  duty  of  coming  into  court  and  entering  a  plea 
in  abatement  on  the  ground  of  mistaken  identity,  or  of 
pleading  to  the  merits  and  establishing  the  fact  that  he 
is  not  the  person  intended  by  the  complaint  and  summons, 
and  that  he  is  under  no  obligation  to  the  plaintiff  on  the 
cause  of  action  set  out  in  the  complaint;  otherwise  he 

23  Grigsby  v.  Napa  County,  36  iSummons  against  "John 
Cal.  585,  95  Am.   Dec.  213.  Lynch,"    served    upon    'Mohn    M. 

24  Kerr's  Cyc.  Cal.  Code  Civ.  Lynch." — Iceland  v.  Johnson,  77 
Proc,    §§  414,   579.  Minn.  543,  77  Am.  St.  Rep.  698,  80 

2r,  See  Edwards  v.  Ilellings,  103  N.  W.  700. 
Cal.   204,   37   Pac.   218.  Or    against    "Manuel    S.    de 

26  As    to    admission    of    service,  Brum,"  served  on  "M.  S.  Brum." — 

see,  post,  §§  242  et  seq.  Brum   v.   Ivins,    154    Cal.    17,    129 

2T  Sharp    V.   Brunnings,   35    Cal.  Am.  St.  Rep.  137,  96  Pac.  876. 
r,28. 

181 


§146 


CODE   PLEADING   AND    PRACTICE. 


[Pt.  I, 


will  be  bound  by  any  judgment  that  the  court  may  render 
in  the  cause,  until  the  same  is  regularly  vacated  or  set 
aside,2  on  the  theory  that  the  judgment  ''necessarily 
establishes  the  right  of  the  plaintiff  to  the  relief  against 
the  person  served."^ 

§  146.  False  name.  Where  the  defendant  is  given  a 
false  name  in  the  complaint  and  summons  served  upon 
him,  the  person  served  is  placed  under  the  legal  obligation 
to  appear  and  enter  a  plea  in  abatement  on  the  groimd 
of  misnomer  ;^  and  on  his  failure  to  do  so,  or  on  his  an- 
swering to  the  merits  without  objection  to  such  false 
name,  the  error  will  be  deemed  waived,  the  party  served 
will  be  concluded,  and  be  bound  by  any  judgment  ren- 
dered by  the  court  against  him  in  the  cause  under  such 
false  name.2 


2  Brum  V.  Ivins,  154  Cal.  17,  129 
Am.  St.  Rep.  137,  96  Pac.  876; 
Ueland  v.  Johnson,  77  Minn.  543, 
77  Am.  St.  Rep.  698,  80  N.  W.  700; 
Foshier  v.  Narver,  24  Ore.  441,  41 
Am.  St.   Rep.  874,  34  Pac.  21. 

3  Id.;  Van  Fleet  on  Collateral 
Attack,   §  367. 

1  El  Capitan  Land  &  Cattle  Co. 
V.  Lees,  13  N.  M.  407,  412,  86  Pac. 
924,  927;  Lafayette  Ins.  Co.  v. 
French,  59  U.  S.  (18  How.)  404, 
15   L.   Ed.  451. 

"George"  for  "Georgie." — Kav- 
anagh  v.  Hamilton,  53  Colo.  157, 
167,  Ann.  Gas.  1914B,  76,  125  Pac. 
517. 

"Guilfuss"  for  G  e  i  I  f  u  s  s." — 
Grannis  v.  Ordean,  234  U.  S.  395, 
58  L.  Ed.  1369,  34  Sup.  Ct.  Rep. 
779. 

"Hafiey-Colman  Co."  for"Halfey- 
Coleman  Co.,"  in  constructive  ser- 
vice of  attachment  against  a 
foreign  corporation,  held  insuf- 
ficient in  Yarbrough  v.   Pugh,   63 


Wash.  143,  33  L.  R.  A.  (N.  S.)  351, 
14  Pac.   919. 

2  COLO.— Burlington  &  M.  R.  Co. 
V.  Burch,  17  Colo.  App.  491,  497, 
69  Pac.  7.  ILL. — Pond  v.  Ennis, 
69  111.  341,  345,  347.  IND.— Bloom- 
field  R.  Co.  V.  Burress,  82  Ind.  84; 
Vogel  V.  Brown  Township,  112 
Ind.  300,  2  Am.  St.  Rep.  188,  14 
N.  E.  78.  IOWA— Wilson  v.  Baker, 
52  Iowa  427,  3  N.  W.  485.  KAN.— 
Hoffield  V.  Board  of  Education,  33 
Kan.  648,  7  Pac.  218.  KY.— Heck- 
man  V.  Louisville  &  N.  R.  Co.,  85 
Ky.  637,  4  S.  W.  344.  MD.— First 
Nat.  Bank  v.  Jaggers,  31  Md.  47, 
100  Am.  Dec.  54.  MISS. — Alabama 
&  V.  R.  Co.  V.  Bolding,  69  Miss. 
263,  30  Am.  St.  Rep.  544,  13  So. 
846.  S.  C. — ^Waldrop  v.  Leonard,  22 
S.  C.  125.  TEX.— McGhee  v. 
Romatka,  92  Tex.  43,  45  S.  W. 
554;  McGhee  v.  Romatka,  18  Tex. 
Civ.  App.'  136,  47  S.  W.  293.  FED.— 
Lafayette  Ins.  Co.  v.  French,  59 
U.  S.  (18  How.)  404,  15  L.  Ed. 
451. 


182 


Ch.  X.]  DEFINITION  OF  PERSONAL  SERVICE.  §§  147,  148 

§  147.  Fictitious  name.  Where  a  defendant  is  sued 
in  a  fictitious  name,^  and  copies  of  the  summons  and  com- 
plaint served  upon  him  in  such  fictitious  name,  even 
though  his  true  name  resembles  in  no  respect  such  ficti- 
tious name,  the  person  thus  served  is  under  the  legal  duty 
to  appear  and  plead  in  abatement  a  misnomer,  or  mis- 
taken identity,  or  to  answer  to  the  merits ;  othei-^vise  the 
person  thus  served  will  be  bound  by  any  judgment  the 
court  may  render  against  him  in  such  fictitious  name.- 
In  a.  subsequent  suit  thereon  the  party  relying  upon  the 
judgment  must  show  that  the  party  served  was  the  party 
against  whom  he  is  seeking  to  enforce  the  judgment,^ 
and  evidence  is  admissible  to  show  that  the  name  under 
which  suit  was  brought  was  erroneous  or  fictitious.^ 

§  148.  '  *  Personal  service  ' '  defined.  The  phrase  * '  per- 
sonal service, ' '  as  applied  to  the  sei^ice  of  a  summons  or 
other  court  writ,  has  a  fixed  and  definite  meaning  in  law — 
in  the  absence  of  any  legislative  enactment  giving  it  a 
different  significance — means  service  of  the  process  by 
actual  delivery  to  the  defendant  personally^  and  not  to  a 
proxy,2  and  does  not  include  service  by  leaving  a  copy  of 
the  summons  and  complaint  at  the  last  and  usual  place  of 

1  As  to  suing  in  fictitious  name,  386,  388;  Holiness  Church  of  San 
see,  ante,  §  132.  Jose   v.   Metropolitan    Church   As- 

2  See:  Guinard  v.  Heysinger,  15  soc,  12  Cal.  App.  445,  107  Pac. 
111.  288;  Bloomfield  R.  Co.  v.  Bur-  633;  McKenna  v.  State  Ins.  Co.. 
ress,  82  Ind.  83;  Fo  shier  v.  73  Iowa  453,  35  N.  W.  519;  Thisler 
Narver,  24  Ore.  441,  41  Am.  St.  v.  Little,  86  Kan.  787,  121  Pac. 
Rep,  874,  34  Pac.  21;  Lafayette  1T23;  Bogart  v.  Swezey,  26  Hun 
Ins.  Co.  V.  French,  59  U.  S.  (18  (N.  Y.)  463,  464;  Rhode  Island 
How.)    404,  15   L.   Ed.   451.  Hospital   Trust   Co.    v.   Keeney,    1 

See,    also,    Freeman    on    Judg-  N.  D.  411,  48  N.  W.  341;  First  Nat. 

ments  (4th  ed.),  §  50a;  Van  Fleet  Bank  v.   Holmes,   12  N.  D.   38.  94 

on  Collateral  Attack,  §  356.  N.    W.    764;     Moyer    v.    Cook,    12 

3  Brum  V.  Ivins,  154  Cal.  17,  20,  Wis.  335,  336;  Risteen,  In  re.  122 
129  Am.  St.  Rep.  137,  96  Pac.  876.  Fed.   732,   733. 

4  Lafayette  Ins.  Co.  v.  French,  2  Thisler  v.  Little,  86  Kan.  787. 
C9  U.  S.  (18  How.)  404,  15  L.  Ed.  121  Pac.  1123;  First  Nat.  Bank  v. 
451.  Holmes,    12    N.    D.    38,    94    x\.    W. 

1  Edmonson    v.    Mason,    16    Cal.      764. 

183 


§§  149, 150 


CODE  PLEADING  AND  PRACTICE. 


[Ft.  I, 


abode,  or  at  the  regular  place  of  business,  of  the  person 
sought  to  be  served.^ 

§  149.  ' '  Duly  served,  ' '  meaning  of.  The  phrase  * '  duly 
served,"  as  applied  to  a  summoiis,  and  means  personal 
notice^  in  the  manner  described  by  law  in  every  particu- 
lar,- requiring  him  to  appear  in  the  court  of  the  county 
in  which  the  action  is  pending."  Thus,  the  service  of  a 
summons  to  appear  in  the  Superior  Court  or  other  court 
of  A  county,  is  not  the  service  of  ''due  process"  to  ap- 
pear in  the  same  court  of  B  county.* 

§  150.  Service  actual,  performance — Reservice.  The 
service  of  a  summons  is  an  actual  performance,  and  where 
there  is  no  performance  in  the  manner  required  by  law, 
from  whatever  cause,  there  is  no  service.^  Conversely, 
if  the  service  of  a  copy  6f  the  summons  and  of  the  com- 
plaint has  been  made  as  required  by  law,  the  fact  that 
the  plaintiff  procures  a  reservice  or  second  ser\dce  to  be 
made,  is  not  so  far  an  invalidation  of,  or  waiver  of,  the 
first  service  as  to  allow  parties  to  the  suit,  and  third 
parties,  to  treat  the  first  service  as  a  nullity.-  Where  a 
summons  was  served  upon  a  defendant  out  of  the  district 
and  subsequently  served  upon  him  within  the  district,  for 
the  purpose  of  shortening  the  time  within  which  he  was 
required  to  appear  and  plead,  the  second  service  was  held 
to  be  an  absolute  nullitv.^ 


:i  Moyer  v.  Cook,  12  Wis.  335, 
336;  Risteen,  In  re,  122  Fed.  732, 
733. 

1  See,  ante,  §148;  Kirk  v. 
United   States,   124   Fed.  324,  337. 

2  Trullenger  v.  Todd,  5  Ore.  36; 
White  V.  Johnson,  27  Ore.  "282,  50 
Am.  St.  Rep.  726,  40  Pac.  511. 

:i  White  v.  Johnson,  27  Ore.  282, 
50  Am.  St.  Rep.  726,  40  Pac.  511. 
4  Trullenger  v.  Todd,  5  Ore.  36. 


1  Labette  County  v.  Franklin, 
16  Kan.  450. 

2  Townsend  v.  Parker,  21  Cal. 
App.  317,  131  Pac.  766;  Dresser 
V.  Wood,  15  Kan.  344;  Caples  v. 
Central  Pac.  R.  Co.,  6  Nev.  265; 
Russell  &  Co.  V.  Millett,  20  Wash. 
212,  55  Pac.  44. 

3  Mayenbaum  v.  Murphy,  5  Nev. 
383.  See,  Townsend  v.  Parker,  21 
Cal.  App,  317,  131  Pac.  766. 


184 


eh.  X.]  AUTHORITY,  ETC.,  TO  SERVE.  §  151 

2.  Authority  or  Capacity  to  Serve. 
%  151.  In  general.  In  California,  a  summons  may  be 
served  by  the  sheriff  of  the  county  in  which  the  defendant 
is  found,  or  by  any  other  person  over  the  age  of  eighteen 
years,  who  is  not  a  party  to  the  action.^  Substantially 
similar  provisions  are  found  in  Arizona,-  Colorado,"  Kan- 
sas,^ Oklahoma,-^  and  Washington.*'  Under  such  a  statu- 
tory provision  service  of  the  summons  can  not  be  made 
by  the  plaintiff  in  the  action,'  or  by  his  attorney."*  The 
service  of  a  summons  by  a  person  not  a  sheriff  is  ''accord- 
ing to  the  course  of  the  common  law."-'  When  the  sum- 
mons is  served  by  the  sheriff,  it  must  be  returned  with  his 
certificate  of  service,  and  of  the  service  of  a  copy  of  the 
complaint  where  such  copy  is  served,  to  the  office  of  the 
clerk  from  which  it  issued. ^°  AVliere  the  service  is  by  a 
deputy  of  the  sheriff,  or  by  a  person  acting  as  such,  the 
return  must  show  that  the  act  was  done,  and  the  return 
itself  must  be,  in  the  name  and  by  the  authority  of  the 
sheriff,  because  the  act  and  return  of  a  deputy  sheriff"  in 
his  o^^^l  name  is  a  mere  nullity;  the  act  of  the  deputy 
must  be  in  the  name  and  by  the  authority  of  the  sher- 
iff"— and  according  to  some  decisions,  the  return  of  the 

1  Kerr's     Cyc.     Cal.     Code     Civ.  7  Toenniges    v.    Drake,    7    Colo. 
Proc,  §  410.  471,  4  Pac.  790. 

2  Lewis  V.  Cunningham,  10  Ariz.  s  Nelson  v.  Chittenden,  23  Colo. 
158,  85  Pac.  244.  App.  123,  127  Pac.  923. 

3  Toenniges    v.    Drake,    7    Colo.  o  Peek  v.   Strauss,  33   Cal.   683; 
471,  4   Pac.  790.  Hibernia  Sav.  &  L.  Soc.  v.  Clarke, 

4  Dolan  V.  Topping,  51  Kan.  321,  110   Cal.   27,   42   Pac.   425. 

32  Pac.  1120.  10  Kerr's    Cyc.    Cal.    Code    Civ. 

Deputy  sheriff  of  county  outside  Proc,   §  410. 

of  the   state   in   which   the   defen-  For  form  of  sheriffs  certificate 

dant   is   found,    not   authorized    to  to   return,   see   Jury's   Adjudicated 

make  the   personal   service  out  of  Forms   of    Pleading    and    Practice, 

the    state    provided    for    in    Gen.  vol.  2,  p.   185,  form   No.   1()S(;. 

Stats.  1889,  par.  4159. — Kincaid  v.  n  Blackwell    v.    Glass,    4::    Arl<. 

Frog,  49  Kan.  766,  31   Pac.  704.  211;    Joyce   v.   .Joyce,    5   Cal.    ti;>; 

■>  England    Bros.    v.    Young,    26  Rowley    v.    Howard,    23    Cal.    401. 

Okla.  494,  110  Pac.  895.  403;     Reinhart    v.    Lugo.    86    Cal. 

i;  Donaldson  v.   Winningham,   62  395.    398.   21    Am.    St.    Rep.    52.    24 

Wash.  212,  113  Pac.  285.  Pac.  1089;  People  v.  Le  Doux,  i:.5 

185 


§152 


CODE   PLEADING   AND   PRACTICE. 


[I>t. 


deputy  must  show  the  county  for  which  the  sheriff  is  act- 
ing! 2 — because  such  deputy  acts  solely  by  virtue  of  the 
power  conferred  upon  him  by  his  principal,  and  all  acts 
by  him  must  be  done  in  the  name  of  that  principal. ^^ 
When  the  summons  is  served  by  any  other  person,  it  must 
be  returned  in  the  same  time  to  the  same  place  as  in  the 
case  of  service  by  the  sheriff,  with  an  affidavit  of  such 
person  of  its  service,  and  of  the  service  of  a  copy  of  the 
complaint,  where  such  copy  is  served.^* 

§  152.  By  SHERIFF — In  general.  It  has  already  been 
seen  that  a  summons  may  be  served  by  the  sheriff  of  the 
county  in  which  the  defendant  is  found  ;^  but  the  general 
provision  of  the  Political  Code,  to  the  effect  that  "the 
sheriff  must  serve  all  process  and  notices  in  the  manner 
prescribed  by  law, ' '-  taken  in  connection  with  section  410 
of  the  Code  of  Civil  Procedure,  does  not  give  to,  or  im- 
pose upon,  the  sheriff  exclusively  the  duty  of  serving  all 
process  and  notices,  but  simply  requires  him  to  serve  all 
process  and  notices  directed  to  him,^  or  placed  in  his 
hands  to  be  served.^    The  same  was  true  at  common  law,^ 


Cal.  535,  544,  102  Pac.  517;  Sam- 
mis  V.  Wightman,  25  Fla.  548,  557, 
6  So.  173;  Ditch  v.  Edwards,  2  111. 
(1  Scam.)  127,  26  Am.  Dec.  414; 
Glencoe,  Village  of,  v.  People,  78 
111.  382;  Robinson  v.  Hall,  33  Kan. 
139,  143,  5  Pac.  7G3;  Fee  v.  Kan- 
sas City,  Ft.  S.  &  M.  R.  Co.,  58 
Mo.  App.  90,  96;  Arnold  v.  Scott, 
39  Tex.   378. 

See  notes,  26  Am.  Dec.  415;  89 
Am.  Dec.  684;  106  Am.  St.  Rep. 
826;    19   L,   R.  A.   180. 

12  Jordan  v.  Terry,  33  Tex.  680. 

13  People  V.  Le  Doux,  155  Cal. 
535,  544,  102  Pac.   517. 

It  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc.  §  410. 

1  See,  ante,  §  150. 


2  Kerr's  Cyc.  Cal.  Pol.  Code 
(2d  ed.),  §4157,  subd.  9  (Consol. 
Supps.  1906-1913,  p.  598),  the 
present,  §  4157,  embracing  former 
Pol.  Code,  §  4176  (Kerr's  Cyc.  Cal. 
Pol.  Code,  1st  ed.),  and  §89  of 
former  County  Government  Act 
(Henning's  Gen.  Laws,  1st  ed., 
p.  215). 

3  In  Colorado  the  sheriff  can 
not  execute  a  process  unless  it  is 
directed  to  him. — Porter  v.  Staff, 
6  Colo.  32.  ■ 

■1  Golden  Gate  Consol.  Hydraulic 
Min.  Co.  v.  Superior  Court,  65 
Cal.  187,  190,  3  Pac.  628;  Hibernia 
Sav.  &  L.  Soc.  V.  Clarke,  110  Cal. 
27,   31,   42  Pac.   425. 

5  See,  ante,  §  150,  footnote  9. 


186 


Ch.  X.]  SERVICE  BY  DEPUTY  SHERIFF.  §§  153,  154 

and  the  doctrine  prevails  in  other  states  having  reformed 
procedural  codes.* 

<^  153.  By  his  deputy.  A  sheriff  may  serve  a  proc- 
ess or  notice  by  his  duly  constituted  deputy.  This  in 
accordance  with  the  general  rule  of  the  common  law  that 
officers  who  exercise  judicial  functions  can  not  act  by 
deputy,  but  those  who  exercise  merely  ministerial  func- 
tions may,  without  express  authority  to  that  effect.^ 
Thus,  in  the  absence  of  statutory  provisions  as  to  the 
appointment  of  deputies  by  constables,  the  common-law 
rule  applies,  and  constables  may  act  by  deputy  in  the 
exercise  of  their  ministerial  functions.-  The  appoint- 
ment of  a  deputy,  and  the  delivery  of  a  process  to  him  by 
the  sheriff,  are  sufficient  authority  to  him  to  serve  the 
same.^  But  courts  can  not  know  an  under-oflicer,  and 
we  have  already  seen  that  the  return  of  a  deputy-sheriff 
to  a  summons  served  by  him  must  be  in  the  name  of  the 
sheriff  and  by  his  authority  to  be  valid."*  Thus,  where  a 
summons  was  served  by  the  deputy-sheriff,  and  returned, 
with  the  following  signature  to  the  return:  ''Elijah  F. 
Cole,  D.  S.,"  and  judgment  was  rendered  by  default,  it 
was  held  that  the  judgment  was  null  and  void ;  the  return 
should  have  been  made  in  the  name  of  the  sheriff  by  the 
deputy.^ 

^  154.  Effect  of  return.  The  return  of  the  sher- 
iff to  the  effect  that  he  ser^^ed  a  copy  of  the  summons,  on 
collateral  attack,  will  be  held  to  be  equivalent  to  a  return 
that  he  served  a  copy  certified  by  the  clerk.^  In  a  case 
where  judginent  of  foreclosure  was  obtained  on  a  defec- 
tive service,  and  the  premises  sold  under  the  judgnnent  to 
a  party  who  was,  at  the  time  of  such  purchase,  cognizant 

c  Porter  V.  Stapp,  6  Colo.  32.  3  McCrackeii    v.    Todd,    1    Kan. 

1  Johnson  v.  Fennell,  35  Cal.  711.  118. 

2  Id.;  Prickett  v.  Cleek,  13  Ore.  -i  See,  ante,  §  150,  footnotes  11-13. 
415,  417,  11  Pac.  49;  Kaysen  v.  &  Rowley  v.  Howard,  23  Cal.  401. 
Steele,  13  Utah  260,  264,  44  Pac.  i  Brown  v.  Lawson,  51  Cal.  615. 
1042. 

187 


§154 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


of  the  fact  of  such  defective  service,  and  also  that  the 
defendant  was  a  married  woman,  and  where  the  defend- 
ant has  a  valid  defense  to  such  action,  the  judgment  will 
be  set  aside.-  Courts  should  presume  that  the  sheriff 
served  all  processes  within  his  jurisdiction,  where  no 
place  of  service  is  stated.^  "Where  the  return  of  a  sheriff 
states  that  he  served  defendants  with  a  certified  copy  of 
the  complaint,  it  will  be  presumed  that  the  copy  was  certi- 
fied by  the  clerk,  and  not  by  some  one  else.^  A  sheriff's 
return  is  not  traversable,  nor  can  it  be  attacked  collater- 
ally, even  if  he  has  been  guilty  of  fraud  or  collusion.^  In 
a  case  where  the  official  return  of  the  sheriff  showed  per- 
sonal service  of  the  summons  upon  the  defendant,  an  afii- 
davit  by  the  defendant,  made  after  a  great  lapse  of  time, 
showing  that  he  had  no  recollection  of  the  service  of 
summons,  was  held  to  be  entitled  to  but  little  weight  as 
against  the  official  return  of  the  sheriff,  and  that  a  find- 
ing in  such  case  by  the  court  below  that  the  defendant  was 
personally  served  with  the  summons  and  a  certified  copy 
of  the  complaint  will  not  be  disturbed  on  appeal.®  In  mak- 
ing service  of  a  summons,  and  in  the  return  of  such 
service,  the  provisions  of  the  statute  must  be  shown  to 
have  been  substantially  followed  by  the  officer ;  otherwise 
the  proceedings  can  not  be  supported  upon  a  direct  ap- 
peal ; '  because  no  presumption  can  be  indulged  that  there 
was  some  other  and  different  kind  of  service  made  than 


2  McMillan  v.  Reynolds,  11  Cal. 
372. 

3  Crane  v.  Brannan,  3  Cal.  192. 

Acknowledgment  of  service  en- 
dorsed on  summons,  is  sufficient 
to  show  that  the  service  was 
properly  made,  although  the 
acknowledgment  fails  to  state  the 
place  of  service. — Stoddard  Mfg. 
Co.  V.  Mattice,  10  S.  D.  255,  72 
N.  W.  891. 

4  Curtis  V.  Herrick,  14  Cal.  117, 


119,  120,  73  Am.  Dec.  632;  affirmed 
18  Cal.  678. 

5  Egery  v.  Buchanan,  5  Cal.  53, 
56;  Gregory  v.  Ford,  14  Cal.  143. 
73  Am.  Dec.  643;  Smoot  v.  Judd, 
184  Mo.  525,  83  S.  W.  486. 

0  People  V.  Dodge,  104  Cal.  487, 
489,  38  Pac.  203. 

See  McCoy  v.  Van  Ness,  98  Cal. 
675.   33   Pac.   761. 

7  People  V.  Bernal,  43  Cal.  385, 
389. 


188 


ell.  X.]  SUFFICIENCY   OF   RETURX.  §  155 

that  appearing  on  the  record;'*  and  where  the  record 
itself  shows  that  no  service  of  summons  has  been  had 
upon  a  defendant,  as  required  by  the  statute,  the  court 
is  without  jurisdiction  of  the  person  of  the  defendant, 
and  a  judgment  rendered  under  such  circumstances  is  a 
nullity.^  A  description  in  a  sheriff's  return  of  city  lots 
by  numbers  referring  to  the  official  map  is  sufficient.^" 

§155. Sufficiency  of  return — Several  de- 
fendants. The  sufficiency  of  the  return  of  a  sheriff  of 
the  service  of  process  is  measured  by  the  requirements 
of  the  statute  under  which  the  service  is  made,  as  inter- 
preted by  the  courts  of  the  state.  Where  the  statute  re- 
quires "personal  service,"^  a  return  by  the  sheriff  which 
simply  says  that  the  summons  was  ''duly  served, "^  has 
been  held  to  be  insufficient,  because  such  return  fails  to 
disclose  who  was  served.^ 

Where  more  than  one  defendant  has  been  served,  the 
return  must  show  the  service  of  a  copy  of  the  summons, 
and  also  the  service  of  a  copy  of  the  complaint,  wdiere 
the  statute  requires  that  a  copy  of  the  complaint  shall  be 
served  with  the  summons,  upon  each  of  the  defendants. 
Where  the  return  is  properly  phrased,  and  the  exact  facts 
set  out,  the  matter  will  be  clear  and  no  question  can  arise ; 
but  where  the  sheriff's  return  simply  recites,  among  other 
things,  regarding  the  summons,  that  the  sheriff  "deliv- 
ered a  true  copy  thereof  to  A  and  B,  the  ^\dthin-named 
defendants,"  instead  of  returning  that  he  delivered  a 
copy  to  A,  and  also  a  copy  to  B,  the  within-named  de- 
fendants, is  the  return  sufficient  on  collateral  attack  of  a 
default  judgment?     According  to  what  is  considered  to 

s  Lonkey   v.   Keyes    Silver   Min.  what  constitutes  such  service,  see, 

Co.,  21  Nev.  312,  320,  31  Pac.  57.  ante,   §  148. 

!>  Davidson  v.  Clark,  7  Mont.  100,  2  As  to  "duly  served,"  see,  ante, 

14  Pac.  663.  §  149. 

10  Welch  V.  Sullivan,  8  Cal.  165,  3  Stults  v.  Outcault,  4  N.  J.  L. 

186.  (1  South.)    130. 

1  As  to   "personal    service"    and 

189 


§  156 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I, 


be  the  weight  of  authority  such  a  return  is  sufficient,  un- 
less directly  attacked  in  the  cause  ;^  but  a  contrary  doc- 
trine is  maintained  by  a  long  line  of  cases  in  Texas, 
under  a  narrow  and  technical  construction  of  a  strict 
statute.^  Thus,  where  the  return  of  the  sheriff  shows  that 
he  served  the  summons  ^'upon  A  on  May  1,  and  upon  B 
on  May  2,  by  delivering  to  and  leaving  with  them  a  certi- 
fied copy  thereof,"  has  been  held  to  sufficiently  show  that 
a  coj)y  was  delivered  to  each  of  the  defendants.*^ 


156. 


False    ketukn — Effect    of.      Where 


the  sheriff,  through  connivance  with  the  plaintiff,  fraud, 
or  mistake,  makes  a  false  return  as  to  the  personal  serv- 
ice of  a  summons  on  a  defendant,  when  no  such  service 
was  in  fact  made,  and  a  default  judgment  is  rendered  by 
the  court,  it  has  been  held  in  a  recent  case  that  the  judg- 
ment thus  rendered  will  not  be  open  to  collateral  attack 
because  of  such  false  return,  the  court  saying  that  tlie 
judgment  thus  entered  is  not  void,  but  voidable  only.^ 
But  is  such  a  contention  sound  law?    How  can  the  couit 


4  McMillan  v.  Harrison,  66  Fla. 
200,  49  L.  R.  A.  (N.  S.)  946,  63  So. 
427;  Martin  v.  Hargardine,  46  111. 
322;  Greenman  v.  Harvey,  53  m. 
386;  Keith  Bros.  &  Co.  v.  Stiles, 
92  Wis.  15,  19,  64  N.  W.  860,  65 
N.  W.  860. 

5  Thompson  v.  Griffith,  19  Tex. 
115;  Covington  V.  Burleson,  28  Tex. 
;]68;  Vaughan  v.  State,  29  Tex. 
274;  Williams  v.  Downes,  30  Tex. 
51;  Willis  v.  Bryan,  33  Tex.  429; 
King  V.  Goodson,  42  Tex.  152; 
Schramm  v.  Gentry,  64  Tex.  143; 
Holliday  v.  Steele,  65  Tex.  388; 
Fulton  v.  State,  14  Tex.  App.  32; 
Randolph  v.  Schwingle  (Tex.  Civ. 
App.),  27  S.  W.  955;  Rush  v. 
Davenport  (Tex.  Civ.  App.),  34 
S.  W.  380;  Chamblee  v.  Hufsmith 
(Tex.    Civ.   App.),   44    S.    W.    616; 


Swilley  v.  Reliance  Lumber  Co. 
(Tex.  Civ.  App.).  46  S.  W.  387; 
Russell  V.  Butler  (Tex.  Civ.  App.), 
71  S.  W.  395;  Scott  v.  Ray  (Tex. 
Civ.  App.),  141  S.  W.  1002; 
Stephenson  v.  Kellogg,  1  Tex. 
App.  Civ.  Cas.  272;  McDowell  v. 
Nicholson,  2  Tex.  App.  Civ.  Ca:;. 
203;  Chowning  v.  Chowning,  3 
Tex.  App.  Civ.  Cas.  191;  Chown- 
ing V.  Sumner,  3  Tex.  App.  Civ. 
Cas.  447;  Rutherford  v.  Daven- 
port, 4  Tex.  App.  Civ.  Cas.  417, 
16  S.  W.  110. 

See  exhaustive  note.  49  L.  R.  A. 
(N.  S.)   946. 

<5  Keith  Bros.  &  Co.  v.  Stiles,  92 
Wis.  15,  19,  64  N.  W.  860,  65  N.  W. 
860.      • 

1  Morgan  v.  Williams,  66  Wash. 
649,  38  L.  R.  A.  (N.  S.)  292,  120 
Pac.   106. 


]90 


ell.  X.] 


FALSE  RETURN,  EPrECT  OF. 


§156 


secure  jurisdiction  without  service  of  process  f-  The 
only  theory  on  which  the  judgment  can  be  maintained  at 
all — for  a  judgment  withon^  jurisdiction  (and  the  actual 
service  of  process  in  some  jrm  authorized  by  law  is  the 
only  thing  that  can  confer  jurisdiction)  is  a  nullity^ — is 
that  it  is  the  return  of  the  sheriff,  and  not  the  service  of 
the  process,  that  confers  upon  the  court  jurisdiction  of 
the  defendant — a  proposition  which  can  not  be  main- 
tained on  principle.  The  only  case  in  California  holding 
this  doctrine^  has  been  declared  not  to  state  the  law  cor- 
rectly, and  is  virtually  overruled.^  It  is  true  there  are 
some  early  cases  which  decide  that  where  the  plaintiff  acts 
in  good  faith,  and  the  sheriff  returns  the  process  as  exe- 
cuted, when  in  truth  the  summons  never  was  served,  the 
return  is  conclusive  against  the  defendant,  in  favor  of 


2  See,  ante,  §  118. 

In  California,  if  a  judgment  is 
taken  without  due  process  of  law 
against  a  defendant  over  whom  no 
jurisdiction  has  been  obtained  by 
the  court,  he  has  no  duty  to  per- 
form in  relation  to  the  proceed- 
ing, and  can  defend  an  action  on 
the  judgment  by  showing  that  he 
had  not  been  served,  notwith- 
standing the  record  of  the  judg- 
ment shows  the  c  o  n  t  r  a  r  y. — 
Lapham  v.  Campbell,  61  Cal.  296, 
300. 

Innproper  service  of  process, 
even,  is  insufficient  to  confer  juris- 
diction on  the  court,  and  it  has 
l)een  held  defendant  not  bound  by 
sale  of  land  under  execution  on 
judgment  rendered  by  default  on 
such  service. — McCoy  v.  Crawford, 
9  Tex.  353. 

Recitals  as  to  service  of  process, 
in  a  judgment  by  default  in  a 
case   where    the    process    was    In 


fact  not  served,  are  worthless  as 
against  the  judgment-defendant 
not  served. — See  Gleason  v.  Dodd, 
45  Mass.  (4  Mete.)  333;  Shelton 
v.  Tiffin,  47  U.  S.  (6  How.)  163, 
12  L.   Ed.  387. 

3  Harshey  v.  Blackmarr,  20  Iowa 
179,  89  Am.  Dec.  527;  Long  v. 
Montgomery,  69  Ky.  (6  Bush)  395. 

Court  assuming  to  act  without 
jurisdiction,  the  proceeding  and 
judgment  will  be  altogether  void. 
— Cooley  Const.  Lim.,  p.  499. 

While  this  is  said  of  want  of 
jurisdiction  of  the  subject-matter 
of  the  action,  it  is  equally  true  of 
a  want  of  jurisdiction  of  the  per- 
son of  the  defendant. 

4  Reinhardt  v.  Lugo,  86  Cal.  395, 
400,  21  Am.  St.  Rep.  52,  24  Pac. 
1089. 

r.  Herman  v.  Santee,  203  Cal. 
519,  524,  42  Am.  St.  Rep.  145,  37 
Pac.  509. 

See   discussion,  post,   §  157. 


191 


§157 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


the  plaintiff  f  but  this  is  thought  not  to  be  the  law  in  any 
jurisdiction  in  the  Union  at  the  present  time  J 


U57. 


''Law  of  the  land":  ''due  proc- 


ess OF  law/'  Both  under  the  federaP  and  state-  consti- 
tutions, alike,  the  protection  of  the  "law  of  the  land"  is 
guaranteed  to  every  citizen  and  sojourner  within  either 
the  federal  or  the  state  jurisdiction,  and  no  person  is  to 
be  rendered  amenable  to  the  judgment  of  any  court  except 
upon  "due  process  of  law,"  and  an  opportunity  to  be 
lieard,  or,  as  it  is  popularly  phrased,  after  he  has  had 
' '  his  day  in  court ' ' — that  is,  a  trial.^  How  can  there  be 
an  opportunity  to  be  heard — a  trial — if  there  is  in  fact 
no  process  served,  and  the  defendant  has  no  notice!  In 
judicial  investigation,  the  "law  of  the  land"  requires 
that  there  shall,  in  all  cases,  be  "due  process  of  law"; 
and  "due  process  of  law"  requires  that  (1)  the  defend- 
ant shall  be  brought  into  court  by  an  actual  service  of 
process  in  a  method  pro\ided  by  law ;  and  when  in  court 
that  (2)  he  shall  be  given  an  opportunity  to  make  his 
statement  as  to  the  claim  or  cause  of  action  of  the  plain- 
tiff, that  is,  to  put  in  a  defense;  and  (3)  requires  a  trial, 
at  which  the  defendant  must  be  allowed  to  introduce  and 
have  heard  his  witnesses,  and  be  given  a  chance  to  estab- 
lish any  fact  w^hich,  according  to  the  usages  of  the  com- 
mon law  or  the  provisions  of  the  constitution,  would  be  a 
l^rotection  to  him  and  to  his  property.*    Shall  a  dishonest 


f,  T  a  y  1  o  r  v.  Lewis,  25  Ky. 
(2  J.  J.  Marsh.)  400,  19  Am.  Dec. 
135;  V^alker  v.  Robbins,  55  U.  S. 
(14  How.)   584,  14   L.  Ed.  552. 

7  See  discussion  next  section; 
also,  note,  19  Am.   Dec.  137. 

1  U.  S.  Const.,  Amendments  V 
and  XIV,  §L 

2  As  Cal.  Const.  1879,  Bill  of 
Rights,  Henning's  Gen.  Laws,  2d 
ed.,  p.  29;  Colo.  Const.  Bill  of 
Rights,  §  25,  etc. 

3  Tift  V.  Griffin,  5  Ga.  185;   Con- 


way V.  Cable,  37  111.  82,  89,  87 
Am.  Dec.  240,  241;  Lenz  v.  Charl- 
ton, 23  Wis.  482. 

4  See:  ALA. — Zeigler  v.  South 
&  N.  A.  R.  Co.  58  Ala.  594.  IOWA— 
Mason  v.  Messenger,  17  Iowa 
261.  KAN.— Taylor  v.  Miles,  5 
Kan.  498,  7  Am.  Rep.  558;  Kansas 
Pac.  R.  Co.  V.  Dunmeyer,  19  Kan. 
539.  MICH. — Parsons  v.  Russell, 
11  Mich.  113,  83  Am.  Dec.  728. 
MO.— Clark  v.  Mitchell,  64  Mo.  564. 
NEB.— South  Platte    Land    Co.    v. 


192 


ch.  X.]  BELIEF  FROM  FALSE  RETURN.  §  158 

or  fraudulent  sheriff,  or  a  negligent  sheriff,  by  a  false 
return  as  to  the  service  of  process,  conclude  a  defend- 
ant without  fault  in  favor  of  a  plaintiff,  even  though  the 
latter  act  in  entire  good  faith  on  his  part!  The  law,  it  is 
thought,  does  not  so  hold,  and  if  it  did  it  would  be  neither 
just  nor  equitable;  to  so  hold  w^ould  be  to  subvert  the 
veiy  foundation  upon  which  our  superstructure  of  gov- 
ernment rests.  A  court  must  have  actual  jurisdiction 
before  its  proceedings  and  judgment  are  valid  and  bind- 
ing. Jurisdiction  comprises  two  elements:  (1)  Of  the 
subject-matter  of  the  action,  given  by  law  through  spe- 
cific provision  or  enumeration;  and  (2)  of  the  person  of 
the  defendant,  given  by  law  through  actual  ser\dce  of 
process,  only.  If  either  of  these  elements  be  lacking, 
the  proceedings  and  the  judgment  of  the  court  are  a 
nullity — when  the  facts  are  established.^ 

<§  158. Relief    from    false    return  — 

1.  In  general:  Kentucky  statute.  Eelief  from  a  false 
return  of  a  sheriff,  through  connivance  with  the  plaintiff, 
fraud,  or  mere  mistake,  depends,  under  some  authorities, 

Buffalo   County  Commissioners,   7  Briggs,  1  Curt.  311,  Fed.  Cas.  No. 

Neb.    253;    Larson    v.    Dickey,    39  5764;    Rosser,  In  re,   41   C.   C.   A. 

Neb.  479,  42  Am.  St.  Rep.  595,  58  497,  101  Fed.  562. 

N.    W.   171;    Chicago,   B.   &   Q.   R.  Defendant   must    be    brought 

Co.  V.  State,  47  Neb.  549,  53  Am.  ^jt^j^    jurisdiction    of    court    by 

St.   Rep.  557,  41   L.   R.   A.  481,   66  ^^^^.^^  ^j  ^^^^^^^  ^.^^.^  ^^  ^ 

N.    W.    624.      NEV.-Wright    v.  to  constitute  "due  process  of  law." 

Cradlebaugh.    3    Nev.    341,     349;  _pennoyer  v.  Neff,  95  U.  S.  714. 

Persing  v.  Reno  Stock  Brokerage  24  l    Ed    565 
Co.,  30  Nev.  342,  349,  96  Pac.  1054. 

N.    Y.— People    v.    Chautauqua  Jurisdiction    of  court  a  part  of 

County  Sheriff,  11  Civ.  Proc.  Rep.  "^"^    P^°^^^^    of   law."-Smith    v. 

172.     OKLA.-Smith  v.  Speed,  11  ^peed,  11  Okla.  95.  55  L.  R.  A.  402. 

Okla.  95,  55  L.  R.  A.  403,  66  Pac.  ^^  ^^^-  ^^^• 

511.  VA. — Williams'  Admr.  v.  New-  Notice  and  an  opportunity  to  be 

man,  93  Va.  719,  2  S.  E.  19.    WIS. —  heard,    are   essential    elements    of 

Schlitz  V.  Roenitz,  86  Wis.  31,  39  "due    process    of   law"    under   the 

Am.  St,  Rep.  873,  21  L.  R.  A.  483,  constitutional  guarantee.— Rosser. 

56    N.    W.    194.      FED.— Simon    v.  In  re,  41  C.  C.  A.  497.  101  Fed.  562. 

Croft,  182  U.  S.  427,  45  L.  Ed.  1165,  5  See,  ante,  §  118;   also,  the  dis- 

21   Sup.   Ct.   Rep.   836;    Greene  v.  cussion  in  next  section. 
I  Code  PI.  and  Pr.— 13                           ^93 


§  159  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

largely  upon  the  wording  of  the  statute  under  which  the 
service  was  made;  but  the  cases  so  holding  are  not 
thought  to  be  sound  law  and  incapable  of  being  supported 
on  principle,  for  the  reason  that  the  authority  of  a  stat- 
ute can  never  rise  higher  than  the  constitution,  federal 
and  state,  and  any  provision  in  a  statute  which  makes 
the  return  of  a  sheriff  to  a  process  absolute  evidence  of 
the  performance  of  the  things  required  by  law  of  him,  like 
a  statute  making  a  tax-deed  absolute  evidence  of  the  regu- 
larity and  sufficiency  of  all  the  proceedings  leading  up 
to  its  execution,  is  plainly  unconstitutional.^  Among 
other  states  having  a  statute  which  concludes  the  defend- 
ant in  favor  of  the  plaintiff  by  the  sheriff's  return,  how- 
ever fraudulent  or  false,  is  the  state  of  Kentucky,-  in 
which  statute  it  is  provided  that  no  fact  ofScially  stated  by 
an  officer  in  respect  to  a  matter  about  which  he  is  required 
by  law  to  make  a  statement  in  writing,  shall  be  called 
in  question,  except  on  an  allegation  of  fraud  in  the  party 
benefited  thereby,  or  mistake  on  the  part  of  the  officer,  in 
a  direct  proceeding  against  the  sheriff  or  his  sureties.-^ 
This  statute  plainly  contravenes  the  constitutional  pro- 
vision guaranteeing  protection  of  the  ^ '  law  of  the  land, ' ' 
and  '*due  process  of  law,"  because  it  concludes  the  de- 
fendant in  favor  of  the  plaintiff  in  a  cause,  by  the  false 
return  of  the  sheriff,  without  notice,  and  affords  no  relief 
by  any  proceedings  in  that  cause. 

§  159. 2.  Motion  to  vacate  judg- 
ment. A  false  return  should  be  attackable,  and  is  be- 
lieved to  be  attackable  in  all  jurisdictions  ha\dng  the 
reformed  system  of  judicature,  in  the  same  suit,  by  a 

1  See  Cooley's  Const.  Lim.,  4th  400,  19  Am.  Dec  135;  Thomas  v. 
ed.,  pp.  458,  459,  and  authorities  Ireland,  88  Ky.  581,  21  Am.  St.  Rep, 
cited.  356,  11  S.  W.  653;  Doty  v.  Deposit 

2  Ky.  Stats.  1903,  §  3760,  Building  &  L.  Assoc,  103  Ky.  710. 

3  Among    decisions    under    this  43  L.  R.  A.  551,  554,  46  S.  W.  219, 
statute,  see  Smith  v.  Hornback,  10  47  S.  W.  433;    Utter  v.  Smith,  25 
Ky.  (3  A.  K.  Marsh.)   392;   Taylor  Ky.  L.  Rep.  2272,  80  S.  W.  447. 
V.  Lewis,  25  Ky.   (2  J.  J.  Marsh.) 

194 


ch.  X.] 


RELIEF  FROM   FALSE  RETURN. 


§15^ 


motion  to  vacate  a  judgment  by  default  in  those  cases 
where  there  was  no  service  of  process  and  the  sheriff 
made  a  false  return  of  service.^  There  is  nothing  sacred 
and  unimpeachable  about  a  sheriff's  conduct  or  any  rec- 
ord required  by  law  to  be  made  by  him,-  and  any  statute 


1  Norton  v.  Atchison,  T.  &  S.  F. 
R.  Co.,  97  Cal.  388,  397,  33  Am.  St. 
Rep.  198,  30  Pac.  585,  32  Pac.  452, 
61  Fed.  619.  See:  Bryant  v.  Mack, 
19  Ky.  L.  Rep.  744,  41  S.  W.  774 
(under  Code,  §763);  Smith  v. 
Hickey,  25  App.  Div.  (N.  Y.)  105, 
49  N.  Y.  Supp.  198;  Moore  v. 
Monumental  Mut.  Life  Ins.  Co.,  77 
App.  Div.  (N.  Y.)  209,  78  N.  Y. 
Supp.  1009;  Freeman  v.  Wood,  11 
N.  D.  1,  8,  88  N.  W.  721. 

Morgan  v.  Williams,  66  Wash. 
(549,  38  L.  R.  A.  (N.  S.)  292,  296, 
120   Pac.    106. 

Presumption  of  legal  service  of 
process  not  indulged  from  fact  that 
party  entitled  to  such  service 
comes  into  court  and  moves  to 
dismiss  the  cause  for  want  of 
service  of  process. — B  o  n  n  e  y  v. 
Baldwin,  3  Mo.  49. 

"Proceeding  by  motion  is,  in  our 
opinion,  authorized,  and  is  the 
proper  way  to  bring  up  and  test 
the  validity  of  the  judgment" 
rendered  on  default  upon  a  false 
return  of  service. — McFarland,  J., 
in  Norton  v.  Atchison,  T.  &  S.  F. 
R.  Co.,  97  Cal.  388,  397,  33  Am.  St. 
Rep.  198,  30  Pac.  585,  32  Pac.  452, 
citing  Ede  v.  Hazen,  61  Cal.  360. 
See  People  v.  Mullan,  65  Cal.  396, 
4   Pac.   348. 

This  remedy  must  be  pursued 
and  exhausted  before  a  court  of 
equity  will  grant  relief  (post, 
§  160).— See:  Ede  v.  Hazen,  61  Cal. 
360;  Zellerbach  v.  Allenburg,  67 
Cal.  296,  299,  7  Pac.  908;  Chie- 
lovich    v.    Krauss,    2    Cal.    Unrep. 


643,  9  Pac.  945;  Luco  v.  Brown, 
73  Cal.  3,  6,  2  Am,  St.  Rep.  772, 
774,  14  Pac.  366;  Moulton  v. 
Knapp,  85  Cal.  385,  390,  24  Pac. 
803;  Estudillo  v.  Security  Loan 
&  Trust  Co.,  149  Cal.  556,  563,  87 
Pac.  19,  22;  Brum  v.  Ivins,  154 
Cal.  17,  21,  129  Am.  St.  Rep.  137. 
96  Pac.  876;  Bear  v.  Higson,  26 
Utah  78,  83,  72  Pac.  180. 

But  the  remedy  must  be  pur- 
sued promptly;  there  is  no  pro- 
vision in  law  for  a  motion  to 
vacate  a  judgment  after  the  time 
limited  in  §  473  of  the  Code  of 
Civil  Procedure.  A  judgment  can 
not  be  attacked  in  this  informal 
way  years  after  its  rendition. — 
People  V.  Goodhue,  80  Cal.  199, 
50  Am.  St.  Rep.  73,  22  Pac.  66; 
People  V.  Harris,  84  Cal.  607,  24 
Pac.   311. 

Remedy  by  motion  confined  to 
cases  in  which  no  personal  service 
had. — Lang  Syne  Gold  Min.  Co.  v. 
Ross,  20  Nev.  127,  137,  19  Am. 
St.    Rep.    337,    342,   18    Pac.   358. 

2  Du  Bois  V.  Clark,  12  Colo.  App. 
220,  55  Pac.  750;  Perry  v.  Bruns- 
wick &  W.  R.  Co.,  119  Ga.  819,  47 
S.  E.  172;  Kochman  v.  O'Neill,  102 
111.  App.  475;  affirmed  202  111.  110, 
66    N.    E.    1047. 

Return  of  service  may  be  shown 
to  be  false,  whether  the  false  re- 
cital is  of  matters  presumptively 
within  the  officer's  knowledge  or 
not,  under  Colorado  Bill  of  Rights, 
§  25.— Du  Bois  V.  Clark,  12  Colo. 
App.   220,   55  Pac.   750. 

Either    in    law    or    in    equity. — 


195 


§159 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


seeking  to  make  either  unattackable  in  the  same  suit  or 
proceeding,  by  showing  its  falsity,  is  plainly  unconstitu- 
tional and  smacks  of  the  primitive  and  undeveloped  con- 
dition of  the  law  during  the  Dark  Ages,  when  the  rack 
and  the  thumb-screw  were  legitimate  means  of  evidence. 
Under  an  enlightened  and  constitutional  view,  a  sheriff's 
return  is  merely  prima  facie  evidence  of  the  fact  of  serv- 
ice of  process — of  the  things  required  by  law  to  be  con- 
tained therein,  and  may  be  controverted  and  disproved 
by  defendant;^  but  all  the  cases  are  not  on  this  modern 
and  enlightened  view-point.^    The  presumption  indulged 


Kochman  v.  O'Neill,  102  111.  App. 
475;  affirmed,  202  111.  110,  66  N.  E. 
1047. 

Evidence  insufficient  to  over- 
come.— Galvin  v.  Dalley,  109  Iowa 
332,  80  N.  W.  420;  Stunkle  v. 
Holland,  4  Kan.  App.  478,  46  Pac. 
416;  Utter  v.  Smith,  25  Ky.  L. 
Rep.  2272,  80  S.  W.  447;  Vaule 
V.  Miller,  69  Minn.  440,  72  N.  W. 
452;  Illinois  Steel  Co.  v.  Dattlaff, 
116  Wis.  319,  93  N.  W.  14. 

Uncorroborated  testimony  of  de- 
fendant sufficient  to  overcome. — 
Trager  v.  Webster,  174  Mass.  580, 
55  N.  E.   318. 

3  See:  Bailey  v  Capelle,  1  Harr. 
(Del.)  449;  Newman  v.  Greeley 
State  Bank,  92  111.  App.  638; 
Splahn  v.  Gillespie,  48  Ind.  397; 
Hoitt  V.  Skinner,  99  Iowa  360,  68 
N.  W.  788;  Shehan  v.  Stuart,  117 
Iowa  207,  90  N.  W.  614;  Baham 
v.  Stewart  Bros.  &  Co.,  109  La. 
999,  34  So.  54;  Trager  v.  Webster, 
174  Mass.  580,  55  N.  E.  318;  State 
ex  rel.  Carroll  v.  Devitt,  107  Mo. 
573,  28  Am.  St.  Rep.  440,  17  S.  W. 
900;  Walker  v.  Stevens,  .52  Neb. 
653,  72  N.  W.  1038;  Marin  v. 
Potter,  15  N.  D.  284,  107  N.  W. 
970;  Masterson  v.  Ashcomb,  54 
Tex.    324;    Northwestern    &.    Pac. 


Hypotheek  Bank  v.  Ridpath,  29 
Wash.  687,  70  Pac.  139;  Brauchle 
v.  Nothhelfer,  107  Wis.  457,  83 
N.  W.   653. 

4  Brown  v.  Turner,  11  Ala.  752; 
Parker  v.  Medlock,  117  Ga.  819, 
47  S.  E.  172;  Calvert,  W.  &  B.  V. 
R.  Co.  V.  Driskill,  31  Tex.  Civ. 
App.  200,  71  S.  W.  997;  Trimble 
V.  Erie  Electric  Motor  Co.,  89 
Fed.  51  (following  rule  in  Penn- 
sylvania). 

Every  presumption  indulged  in 
favor  of  the  truth  of  a  sheriff's 
return. — Ingraham  v.  McGraw,  3 
Kan.  521. 

Presumption  of  service  of  pro- 
cess of  a  court  of  general  common- 
law  jurisdiction. — Steinhardt  v. 
Baker,  163  N.  Y.  410,  57  N.  E.  629, 
affirming  25  App.  Div.  197,  49  N.  Y. 
Supp.  357. 

Presumption  not  indulged  as  to 
private  person  or  special  bailiff 
making  service  and  return;  strict 
compliance  with  law  required  in 
such  cases. — Simms  v.  Simms,  88 
Ky.  642,  11  S.  W.  665. 

Return  of  sheriff  endorsed  on 
summons  evidence  of  a  high 
grade,  abundantly  sufficient  to 
sustain  a  finding  of  proper  ser- 
19b' 


Ch.  X.]  RELIEF   FROM   FALSE  RETURN.  §  IGO 

by  courts  as  to  the  regularity  and  validity  of  proceedings, 
including  of  course  the  service  of  process,  before  judg- 
ment or  decree,  is  applicable  in  cases  of  collateral  attack 
only,  and  can  not  be  invoked  to  cure  a  jurisdictional  de- 
fect^ in  the  service  of  process,  or  to  bolster  up  a  fraudu- 
lent or  mistaken  act  of  a  sheriff  in  making  a  false  return 
as  to  the  service  of  process,  upon  an  application  in  tlie 
same  suit,  to  set  aside  a  default  judgment  or  decree  for 
want  of  jurisdiction  on  the  part  of  the  court,  because  of 
a  failure  in  the  service  of  process.^  A  motion  made  in 
the  case  to  set  aside  the  judgment  is  a  direct  and  not  a 
collateral  attack  on  such  judgmenf^  The  proof  of  falsity 
of  the  return  of  the  sheriff  must  be  positive,  satisfactory, 
and  conclusive.^ 

§160. 3.  Suit  in  equity  to  vacate 

OR  enjoin.  By  the  weight  of  authority  and  the  better 
reason,  a  court  of  equity  has  jurisdiction  to  vacate,  or 
otherwise  relieve  against,  a  judgment  in  a  cause  at  law 
in  which  the  complainant  was  not  served  with  process, 
and  of  which  suit  he  had  no  notice,^  and  this  is  true  even 

vice. — Murrer  v.  Security  Co.,  131  Dist.,    142    Cal.    601,    606,    76    Pac. 

Ind.  35,  30  S.  E.  879.  381;     Hanley    v.    Hanley,    4    Cal. 

5  As  to  jurisdictional  defects  in  Prob.    479.     ILL. — Owens   v.   Ran- 
service  of  process,  see  note,  §  38.  stead,     22     111.     161.       I O  W  A — 

6  See    Blythe    v.    Hinckley,    84  Harshey    v.    Blackmarr,    20    Iowa 
Fed.  228,  239.  161,  89  Am.  Dec.  520;    Newcombe 

7  People  V.  Mullan,  65  Cal.  396,  v.   Dewey,  27  Iowa  381;    Stone  v. 
4   Pac.   348.  Skerry,     31     Iowa     582.       KAN.— 

s  Osman    v.    Wisted,    78    Minn.  Chambers  v.  Wrought  Iron  Bridge 

295,    80    N.   W.    1127;    Randall    v.  Mf'g'ry,   16   Kan.   270.     KY.— Lan- 

Colllns,   58   Tex.   232.  drum  v.  Farmer,  69  Ky.  (6  Bush) 

1  ALA.— Brooks    v.    Harrison,    2  46.       MISS.— Walker     v.     Gilbert, 

Ala.  209;   Crafts  v.  Dexter,  8  Ala.  Freem.    Ch.    85.      MO. — Wonderly 

767,    42    Am.    Dec.    666.      ARK.—  v.  Lafayette  County,  150  Mo.  635, 

Little    Rock    &    Ft.    S.    R.    Co.    v.  73  Am.  St.   Rep.  474,  45   L.   R.  A. 

Wells,  61  Ark.  354,  54  Am.  St.  Rep.  386,  51  S.  W.  745;   Smoot  v.  Judd, 

216,  260,  30  L.  R.  A.  560,  33  S.  W.  161  Mo.  673,  687,  84  Am.  St.   Rep. 

208.     CAL.— Dunlap  v.   Steere,   61  738,  744,  61  S.  W.  851;    Engler  v. 

Cal.  298;  Curtis  v.  Schell,  129  Cal.  Knoblaugh,  131  Mo.  App.  493,  110 

208,  211,   79   Am.  St.   Rep.   157,   61  S.   W.   749.   MONT.— Hauswirth  v. 

Pac.    951;    People    v.    Perris    Irr.  Sullivan,  6  Mont.  203,  9  Pac.  798; 

197 


§160 


CODE  PLEADING  AND  PRACTICE. 


[Ft.  I, 


though  the  plaintiff  in  the  law  cause  was  not  privy  to  the 
fraudulent  or  the  negligent  act  of  the  sheriff  through 
which  the  false  return  was  made.-  The  fact  that  the  com^ 
plainant  has  no  adequate  remedy  at  law,  is  a  strong  reason 
for  granting  such  relief.^  Thus,  in  a  case  where  the  w^ant 
of  jurisdiction  of  the  court  rendering  the  judgment 
against  the  complainant  did  not  appear  upon  the  face  of 
the  record,  and  for  that  reason  an  appeal  was  affirmed, 
the  fact  of  such  affirmance  was  held  not  to  constitute  an 
impediment  to  granting  relief  in  equity,  for  the  obvious 
reason  that  the  remedy  at  law  by  appeal  was  inadequate.^ 
A  suit  in  equity  for  relief  against  such  a  judgment  is  not 


state  ex  rel.  Happel  v.  District 
Court,  38  Mont.  166,  172,  129  Am. 
St.  Rep.  636,  35  L.  R.  A.  (N.  S.) 
1098,  99  Pac.  291.  N.  Y.— Dob- 
son  V.  Pierce,  12  N.  Y.  165,  62 
Am.  Dec.  154.  OHIO— Oliver  v. 
Pray,  4  Ohio  178,  19  Am.  Dec.  595. 
ORE. — Hadley  v.  Jackson,  31  Ore. 
555,  65  Am.  St.  Rep.  841.  50  Pac. 
916;  Huntington  v.  Crouter,  33 
Ore.  408,  72  Am.  St.  Rep.  726,  54 
Pac.  208.  PA. — Miller  v.  Gorman, 
38  Pa.  St.  309.  R.  I.— Dowell  v. 
Goodwin,  22  R.  I.  291,  84  Am.  St. 
Rep.  842,  51  L.  R.  A.  873,  47  Atl. 
695.  TENN.— Estis  v.  Patton,  11 
Tenn.  (3  Yerg.)  381;  Ridgeway  v. 
Bank  of  Tennessee,  30  Tenn.  (11 
Humph.)  522;  Bell  v.  Williams, 
38  Tenn.  (1  Head)  229;  Ingle  v. 
McCurry,  48  Tenn.  (1  Heisk.)  26. 
VT.— Emerson  v.  Udall,  13  Vt. 
477,  37  Am.  Dec.  604.  W.  VA.— 
Farmers'  &  Shippers'  Leaf  To- 
bacco Warehouse  Co.  v.  Pride- 
more,  55  W.  Va.  451,  463,  47  S.  E. 
258,  263.  WIS.— Johnson  v.  Cole- 
man, 23  Wis.  452,  99  Am.  Dec.  193. 
FED. — Marine  Ins.  Co.  v.  Hodgson, 
11  U.  S.  (7  Cr.)  332,  3  L.  Ed.  362; 
Kibbe  v.  Benson,  84  U.  S.  (17 
Wall.)   628,  21  L.  Ed.  742;   Phillips 


V.  Negley,  117  U.  S.  675,  29  L.  Ed. 
1015,  6  Sup.  Ct.  Rep.  905;  United 
States  V.  Taylor,  157  Fed.  718; 
National  Surety  Co.  v.  State  Bank, 
56  C.  C.  A.  657,  129  Fed.  599,  61 
L.   R.  A.  394. 

"Bills  in  equity  for  injunction 
against  judgment,  as  well  as  for 
new  trials  of  action  at  law,  are 
not  frequent,  yet  they  are  recog- 
nized as  falling  within  chancery 
jurisdiction,  and  may  be  sustained 
.  .  .  when  no  other  remedy  is 
adequate." — Carrington  v.  Hola- 
bird,  17  Conn.  530,  19  Am.  Dec.  84. 
See  Oliver  v.  Pray,  4  Ohio  175, 
19   Am.   Dec.  595. 

New  trial  at  law,  how  and  when 
obtainable  in  equity. — See  note,  19 
Am.   Dec.  609. 

Simply  to  give  new  trial,  equity 
will  not  assume  control  of  judg- 
ment at  law. — Marshall  v.  Holmes, 
141  U.  S.  589,  596,  35  L.  Ed.  870, 
873,  12  Sup.  Ct.  Rep.  62,  64. 

2  Bishop  V.  Wood,   59  Ala.    253. 

3  Ridgeway  v.  Bank  of  Tennes- 
see,  30  Tenn.   (11  Humph.)   522. 

4  Wilson  •  V.  Montgomery,  22 
Miss.  (14  Smed.  &  M.)  205;  Mc- 
Mahen  v.  Whelan,  44  Ore,  406, 
75    Pac.    716. 


198 


ch.  X.] 


RELIEP  FROM  FALSE  RETURN. 


§160 


a  collateral  attack  on  the  law-court  judgment,  but  is  a 
<lirect  attack  upon  the  same,^  and  the  recitals  in  the  sher- 
iff's return  may  be  traversed,  and  the  return  shown  to 
be  false.^  As  is  to  be  expected,  and  as  indicated  in  the 
discussion  of  this  subject  in  the  foregoing  sections,  the 
decisions  of  the  courts  of  the  various  jurisdictions  are 
not  harmonious  upon  this  question.  There  is  a  strong 
tendency  in  some  jurisdictions,  in  those  cases  in  which 
the  plaintiff  in  the  law-court  cause  was  innocent  of  any 
act  to  cause  the  false  return  by  the  sheriff,  and  was  in 
no  way  implicated  in  it  and  had  no  knowledge  of  the  fact 
that  the  return  was  false,  to  treat  the  sheriff's  return  as 
concluding  the  defendant  in  favor  of  the  plaintiff  in  such 
law-court  cause,"^  even  where  the  judgment  is  assailed  in 
a  suit  in  equity  on  the  ground  that  the  defendant  in  the 
law-court  cause  did  not  know  of  the  pendency  of  the 
action,  and  for  that  reason  did  not  have  an  opportunity^ 
to  make  a  defense.®    But  the  weight  of  authority,  as  well 


5  Smoot  V.  Judd,  161  Mo.  673, 
686,  84  Am.  St.  Rep.  738,  744,  61 
S.  W.  851. 

Collateral  attack  in  equity  per- 
missible where  against  conscience 
to  execute  the  judgment. — Ross 
V.  Banta,  140  Ind.  133,  34  N.  E. 
868. 

6  ALA. — Crofts  v.  Dexter,  8  Ala. 
767,  42  Am.  Dec.  666.  CAL.— 
Lapham  v.  Campbell,  61  Cal.  296. 
COLO.— Wilson  v.  Hawthorne,  14 
Colo.  530,  20  Am.  St.  Rep.  290,  24 
Pac.  548.  CONN.— Bridgeport  Sav. 
Bank  v.  Eldridge,  28  Conn.  556, 
73  Am.  Dec.  688.  ILL.— Owens  v. 
Ranstead,  22  111.  161.  IOWA— 
Newcomb  v.  Dewey,  27  Iowa  381; 
Stone  V.  Skerry,  31  Iowa  582. 
KY.— Brambett  v.  McVey,  91  Ky. 
151,  15  S.  W.  49.  MINN.— Magin 
V.  Lamb,  43  Minn.  80,  19  Am.  St. 
Rep.  216,  sub  nom.,  Magin  v. 
Pitts,    44    N.    W.    675.      TENN.— 


Ridgeway  v.  Bank  of  Tennessee, 
30  Tenn.  (11  Humph.)  525;  Bell 
V.  Williams,  38  Tenn.  (1  Head) 
229.  WIS.— Johnson  v.  Coleman, 
23  Wis.  452,  99  Am.   Dec.  193. 

7  See,  ante,  §  156,  footnote  6. 
Also:  Kohn  v.  Hass,  95  Ala.  478, 
12  So.  577;  Hockaday  v.  Jones, 
8  Okla.  163,  56  Pac.  156;  Ellis 
V.  Akers,  32  Okla.  99,  121  Pac. 
259;  Crocker  v.  Allen,  34  S.  C. 
463,  27  Am.  St.  Rep.  838,  13  S.  E. 
653. 

No  degree  of  wrong  in  deter- 
mination of  cause  will  entitle  in- 
jured party  to  relief. — Pollock  v. 
Gilbert,  16  Ga.  403,  60  Am.  Dec. 
735. 

NCoIson  V.  Leitch,  110  111.  504; 
Krug  V.  Davis,  85  Ind.  309;  Cully 
V.  Shirk,  131  Ind.  76,  31  Am.  St. 
Rep.  414,  30  N.  E.  882;  Graham 
V.  Loh,  32  Ind.  App.  187,  69  N.  E. 
476;  Goddard  v.  Harbour,  56  Kan. 


199 


§161 


CODE  PLEADING  AND   PRACTICE. 


[Ptl, 


as  the  better  doctrine  on  principle,  is  the  contrary  one 
endorsed  in  this  section.  It  is  impossible  to  conceive,  on 
any  known  legal  principle,  how  the  plaintiff  in  the  cause 
at  law,  by  a  false  return  of  the  sheriff,  could  acquire  any 
equity  superior  to  that  of  the  defendant  in  the  law  cause 
to  be  relieved  against  an  unjust  judgment  rendered 
against  him,  without  any  fault  of  his,  by  a  court  that  had 
not  acquired  jurisdiction  of  his  person.^ 


U61. 

TO  EELIEF 


Conditions    precedent 


The  right  to  maintain  an  action  in  equity  for 
relief  against  a  judgment  by  default,  rendered  by  a  court 
without  the  service  of  process, — or  relief  from  any  other 
unjust  or  unconscionable  judgment, — depends  upon  the 
prompt  action  of  the  judgment-defendant  upon  the  dis- 
covery of  the  facts  or  of  the  fraud  ;^  and  the  further  fact 


744,  54  Am.  St.  Rep.  608,  44  Pac. 
1055;  Taylor  v.  Lewis,  25  Ky.  (2 
J.  J.  Marsh.)  400,  19  Am.  Dec. 
135;  Thomas  v.  Ireland,  88  Ky. 
581,  21  Am.  St.  Rep.  356,  11  S.  W. 
653;  Johnson  v.  Jones,  2  Neb.  133; 
Walker  v.  Robbins,  55  U.  S.  (14 
How.)  584,  14  L.  Ed.  552;  Knox 
County  V.  Harshman,  133  IT.  S. 
152,  33  L.  Ed.  586,  10  Sup.  Ct. 
Rep.  257;  Miedreich  v.  Lauen- 
stein,  232  U.  S.  247,  58  L.  Ed.  591, 
34  Sup.  Ct.  Rep.  309. 

9  Dunklin  v.  Wilson,  64  Ala.  162; 
Ryan  v.  Boyd,  33  Ark.  778;  State 
V.  Hill,  50  Ark.  458;  8  S.  W.  401; 
Bramlett  v.  McVey,  91  Ky.  151, 
15  S.  W.  49;  Hauswirth  v.  Sulli- 
van, 6  Mont.  203,  9  Pac.  798; 
Ridgeway  v.  Bank  of  Tennessee, 
30  Tenn.  (11  Humph.)  523;  Ray- 
mond V.  Conger,  51  Tex.  536; 
Hamblen   v.    Knight,    60    Tex.    36. 

1  Laches  or  negligence  will  de- 
feat right. — See:  Snider  v.  Rein- 
hart,  20  Colo.  448,  39  Pac.  408; 
Hill  V.  Beatty,  61  Cal.  295;   Stroup 


V.  Sullivan,  2  Ga.  279,  46  Am.  Dec. 
390;  Warner  v.  Helm,  6  111.  (1 
Gilm.)  231;  Bank  v.  Campbell,  12 
Ind.  45;  Doyle  v.  Reilly,  18  Iowa 
113,  85  Am.  Dec.  585;  Huston  v. 
Ditto,  20  Md.  305,  324;  Kearney 
V.  Sascer,  37  Md.  276;  Vantilburg 
V.  Black,  3  Mont.  459,  469;  Cairo 
&  F.  R.  Co.  V.  Titus,  27  N.  J.  Eq. 
106;  Duncan  v.  Lyon,  3  Johns. 
Ch.  (N.  Y.)  357,  8  Am.  Dec.  516; 
Schroeppell  v.  Shaw,  3  N.  Y.  452; 
Oregon  Railway  &  Nav.  Co.  v. 
Gates,  10  Ore.  514,  518;  Goalsby 
V.  St.  John,  25  Gratt.  (Va.)  162; 
Spokane  Co-operative  Min.  Co.  v. 
Pearson,  28  Wash.  118,  126,  68 
Pac.  165,  168;  Thomas  v.  Thomas, 
88  Wis.  93,  59  N.  W.  506;  Brown 
V.  Buena  Vista  County,  95  U.  S. 
159,  24  L.  Ed.  423;  Christy  v. 
Atchison,  T.  &  S.  F.  R.  Co.,  214 
Fed.   1022. 

Review  on  ground  of  fraud,  bill 
for  must  show  how  fraud  was  dis- 
covered, and  why  it  could  not 
sooner    have    been    discovered.— 


200 


ell.  X.] 


BELIEF  FROM  FALSE  RETURN. 


§161 


that  he  does  not  act  and  takes  no  step  which  a  court  of 
equity  will  construe  as  a  waiver  of  the  false  return  of 
the  sheriff,  or  other  fraud  or  irregularity  going  to  the 
jurisdiction  of  the  law-court.-  It  must  further  be  made 
to  appear  from  the  bill  or  complaint  seeking  equitable 
relief  that: 

1.  Remedy  at  law  has  been  exhausted  and  no  other  or 
further  relief  can  be  had  from  that  source,^  where  the 
law-courts  can  furnish  adequate  relief,^  and  particularly 
where  this  remedy  can  be  had  in  the  original  cause, — is 
the  holding  of  many  of  the  decisions;  but  there  are  de- 
cisions to  the  effect  that  relief  mil  be  granted  in  equity, 
notwithstanding  the  fact  that  there  may  be  a  complete 
and  adequate  remedy  in  the  original  cause.^ 


Pittsburgh,  C.  C.  &  St.  L.  R.  Co. 
V.  Keokuk  High  Bridge  Co.,  107 
Fed.    781,    786. 

2  Rhode  Island  Exchange  Bank 
V.  Hawkins,  6  R.  I.  204;  Morgan 
V.  Williams,  66  Wash.  649,  38 
L.  R.  A.  (N.  S.)  292,  296,  120  Pac 
106,  citing  Tausick  v.  Tausick,  52 
Wash.  301,  100  Pac.  757. 

3  Imlay  v.  Carpentier,  14  Cal. 
173;  Logan  v.  Hillegass,  16  Cal. 
201:  Bibend  v.  Kruetz,  20  Cal.  109, 
114;  Ketchum  v.  Crippin,  37  Cal. 
223;  Lapham  v.  Campbell,  61  Cal. 
299  (sufficient  ground  for  not 
making  motion  held  to  be  stated) ; 
Ede  V.  Hazen,  61  Cal.  361;  Chie- 
lovich  V.  Krauss,  2  Cal.  Unrep. 
643,  9  Pac.  945;  Hintrager  v. 
Sumbardo,  54  Iowa  604,  7  N.  W. 
92:  Miller  v.  Doxey,  1  Miss. 
(Walk.)  333,  338;  Vantilburg  v. 
Black,  3  Mont.  459,  469;  McCor- 
mick  V.  Hubbell,  4  Mont.  87,  100, 
5  Pac.  314,  317;  Oliver  v.  Pray,  4 
Ohio  175,  19  Am.  Dec.  595;  Wells 
Fargo  &  Co.  v.  Wall,  1  Ore.  296, 
299:  Galveston,  H.  &  S.  A.  R.  Co. 
V.  Dowe,  70  Tex.  1,  4,  6  S.  W.  790, 


792;  Marine  Ins.  Co.  v.  Hodgson, 
11  U.  S.   (7  Cr.)   332,  3  L.  Ed.  362. 

Crowley  v.  Northern  Pac.  R.  Co., 
46  Fed.  325. 

In  California  bill  or  complaint 
must  show  sufficient  reasons  why 
the  statutory  remedy  by  motion 
(see,  ante,  §  159)  has  not  been 
resorted  to. — Lapham  v.  Campbell, 
61  Cal.  296,  299,  301. 

4  Hood  V.  New  York  &  N.  H.  R. 
Co.,  23  Conn.  609,  622;  New  York 
City,  Mayor,  etc.,  of,  v.  Brody, 
115  N.  Y.  599,  616,  22  N.  E.  237, 
242;  Embry  v.  Palmer,  107  U.  S. 
3,  10,  27  L.  Ed.  346,  349,  2  Sup. 
Ct.  Rep.  25,  31;  Phillips  v.  Negley, 
117  U.  S.  665.  675,  678,  29  L.  Ed. 
1013,  1015,  1016,  6  Sup.  Ct.  Rep. 
901,    905,   906. 

See  numerous  cases  cited,  19 
Cent.  Dig.  Cal.  182,  §  121,  8  Decen. 
Dig.,   p.   75,   §  43. 

5  Connell  v.  Stelson,  33  Iowa 
147;  Hernandez  v.  James,  23  La. 
Ann.  483;  Caruthers  v.  Hatsfield, 
11  Tenn.  (3  Yerg.)  366,  24  Am. 
Dec.  580;  McNairy  v.  Eastland, 
18    Tenn.    (10    Yerg.)    309;    John- 


201 


§161 


CODE  PLEADING  AND  PRACTICE. 


[Pt.I, 


2.  Good  defense  at  law  or  in  equity  is  required  to  be 
sliown  by  the  bill  or  complaint  seeking  relief,  as  well  as 
freedom  from  fault  or  negligence,  in  some  states,  as  a 
condition  precedent  to  entertaining  the  suit  and  granting 
the  relief  sought  against  a  judgment  at  law  in  a  cause  in 
which  there  was  no  service  of  process  upon  the  judgment- 
defendant,^ — or  for  other  irregularity  going  to  the  juris- 
diction of  the  law-court.  A  good  defense  shown  is  suffi- 
cient, notwithstanding  the  fact  that  it  is  and  was  unavail- 
able in  the  law-court,'^ — e.  g.  such  as  an  equitable  defense,^ 
of  which  the  complainant  could  not  avail  himself  at  law  f 
or  a  defense  that  was  unknown  to  him  at  the  time  of  the 
law-action,^"  has  come  to  his  knowledge  since  the  judg- 


son  V.  Coleman,  23  Wis.  452,  99 
Am.  Dec.  193. 

« Hunt  V.  Test,  8  Ala.  713,  42 
Am.  Dec.  659;  Crafts  v.  Dexter, 
8  Ala.  767,  42  Am.  Dec,  666;  Mar- 
tin V.  Berry,  20  Ala.  369;  Talia- 
ferro V.  Branch  Bank,  23  Ala. 
755;  Dunklin  v.  Wilson,  64  Ala.  168; 
People  V.  Rains,  23  Cal.  127; 
Stroup  V.  Sullivan,  2  Ga.  275,  46 
Am.  Dec.  389;  Bellamy  v.  Wood- 
son, 4  Ga.  175,  48  Am.  Dec.  221; 
Skinner  v.  Doming,  2  Ind.  558,  54 
Am.  Dec.  463;  Meyer  v.  Wilson, 
166  Ind.  651,  76  N.  E.  748;  Kyle  v. 
Van  Bibber,  7  La.  Ann.  575;  Cot- 
ton V.  Hiller,  52  Miss.  11  (must 
establish  to  high  degree  of  cer- 
tainty the  validity  and  potency  of 
his  defense) ;  Stout  v.  Slocum,  52 
N.  J.  Eq.  89,  28  Atl.  7;  Keith  v. 
Alger,  114  Tenn.  28,  85  S.  W.  71. 

7  Vennum  v.  Davis,  35  111.  574; 
Walker  v.  Heller,  90  Ind.  202. 

s  Stevens  v.  Hertzler,  114  Ala. 
574,  22  So.  124;  Gregory  v.  Ford, 
14  Cal.  138,  73  Am.  Dec.  639; 
Pierce  v.  Christian,  3  Ga.  226,  46 
Am.  Dec.  423;    Pollock  v.  Gilbert, 


16  Ga.  308,  60  Am.  Dec.  732;  White 
V.  Henderson,  40  Ga.  498;  De  Louis 
V.  Meek,  2  G.  Greene  (Iowa)  55, 
50  Am.  Dec.  491;  Hughes  v.  Nel- 
son, 29  N.  J.  Eq.  (5  Dutch)  551; 
Dobson  V.  Pearce,  12  N.  Y.  156, 
62  Am.  Dec.  152;  Lockwood  v. 
Mitchell,  19  Ohio  448,  53  Am.  Dea. 
438;  Bank  of  Tennessee  v.  Patter- 
son, 27  Tenn.  (8  Humph.)  363,  47 
Am.  Dec.  618;  Emerson  v.  Udall. 
13  Vt.  477,  37  Am.  Dec.  604;  Hen- 
drickson  v.  Hinckley,  58  U.  S.  (17 
How.)  445,  15  L.  Ed.  124. 

Indebtedness  not  denied  by  party 
seeking  to  have  set  aside  judg- 
ment rendered  by  default  upon  a 
false  return  of  service  by  the  sher- 
iff, it  would  be  as  equitable  to 
turn  him  over  to  his  action  against 
the  sheriff  for  a  false  return  as  to 
retrieve  him  from  the  judgment, 
the  statute  having  barred  the  debt. 
—Gregory  v.  Ford,  14  Cal.  138,  73 
Am.  Dec.  639. 

9  Hendrickson  v.  Hinckley,  58 
IT.  S.  (17  How.)  445,  15  L.  Ed.  124. 

10  Powers  v.  Butler,  4  N.  J.  Eq. 
(1  South.)   470. 


202 


eh.  X.]  RELIEF   FROM    FALSE  RETURN.  §  16'i 

iiient  complained  of  was  made  and  entered/'  or  has 
accrued  since  such  judgment  was  rendered  ;^^  but  a  sim- 
ple right  of  set-off  existing  in  his  favor,  available  either 
at  law  or  in  equity,  will  not  constitute  such  "good  de- 
fense" as  is  required.'^  .  ■  '■- 

§  162. 4.  AcTiojsr    against   sheriff 

ON  BOND.  Where  a  sheriff  returns  on  a  summons,  issued 
to  him  for  service,  that  the  same  was  personally  served 
upon  the  defendant  named  therein,  wdiereas  as  a  matter 
of  fact  no  service  of  the  process  was  made  upon  the  de- 
fendant, the  sheriff  is  liable,  in  a  suit  upon  his  bond,  in 
damages  to  the  party  injured,^  the  same  as  he  is  liable 
upon  his  bond  for  any  other  false  return.-  But,  as  has 
l)een  well  said,  the  action  against  the  sheriff  on  his  bond 
for  a  false  return  to  a  process  is  an  unsatisfactory  and 
usually  an  inadequate  remedy  for  such  an  injury,^  be- 
cause, as  it  has  been  said,  *'it  might  be  that  after  ruinous 
sacrifice,  in  the  payment  of  a  judgment  so  recovered,  and 
the  delay  and  expense  of  litigation  with  the  officer  who 
made  the  false  return,  he  might  be  unable  to  make  the 
proper  indemnity,  or  succeed  in  evading  his  liability,"'* 
and  for  that  reason  the  only  adequate  protection  and 
remedy  lies  in  a  court  of  equity,  which  always  should 
afford  relief  from  a  judgment  rendered  in  a  case  in  which 
there  was  no  service  of  process,^  and  a  false  return  made 
by  the  sheriff,  on  which  return  the  court  enters  a  default 
judgment.^     The  overwhelming  weight  of  authority  in 

11  Cammann    v.    Traphagan,     1,  2  As  to    liability    In   damages  of 
N.  J.  Eq.  (Saxt.)  30.  sheriff  for  a  false  return,  see  au- 

12  White   V.    Henderson,   40    Ga.  thorities   cited  43   Cent.  Dig.   Cal. 
498.  3650,    §236;    18    Decen.    Dig.,    1st 

13  Pierce  v.  Winter  Iron  Works,  series,  p.  202,  §  124. 

32  Ala.  74.  3  Ridgeway  v.  Bank  of  Tennes- 

1  Miedreich    v.    Lauenstein,    232  see,    30    Tenn.    (11    Humph.)    522, 

IJ.  S.  236,  247,  58   L.  Ed.  584,  591,  525. 

34  Sup.  Ct.  Rep.  309.     See  Morgan  4  Id. 

V.    Williams,    66    Wash.    649,    38  r.  See,  ante,  §  160. 

L.  R.  A.  (N.  S.)  292,  120  Pac.  106.  «  See,  ante,  §  118. 

203 


§  162  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

this  country  is  to  this  effect.  I  am  not  unmindful  of  the 
language  of  Mr.  Justice  Day,  in  a  recent  case,"^  refusing 
to  grant  relief  in  equity  from  a  judgment  and  execution 
in  a  cause  in  which  there  had  been  no  service  of  process, 
and  the  court  entered  default  judgment  on  the  sheriff's 
false  return  of  process  as  having  been  served,  and  conse- 
quent heavy  financial  loss,  unless  relieved  in  equity,  of 
the  judgment-defendant.  In  this  decision  the  novel  doc- 
trine is  advanced,  without  judicial  reasoning  or  argu- 
ment, and  without  citation  of  authorities  to  support  it, 
that  because  the  judgment-defendant  has,  under  the  state 
statute,  a  right  to  institute  a  new  action  against  the 
sheriff  for  damages  for  the  false  return,  such  judgment- 
defendant  was  not  deprived  of  the  constitutional  guaran- 
tee of  *'due  process  of  law"  in  the  first  suit,  even  though 
admitting  that  the  amount  that  could  be  recovered  in  any 
event,  even  if  such  second  suit  were  successful,  was  but 
a  fraction  of  the  damages  that  had  been  or  would  be 
actually  suffered  by  such  wronged  judgment-defendant.^ 
This  doctrine  is  against  the  decided  weight  of  authority, 
so  far  as  numbers  go,  and  against  the  enlightened  and 
better  doctrine.  The  opinion  has  the  distinguishing  fea- 
tures of  (1)  an  entire  misconception  of  the  true  and 
usually-accepted  meaning  of  ''due  process  of  law"  guar- 
anteed by  the  federal  constitution,  and  (2)  the  placing 
of  a  state  statute  above  the  federal  constitution,  where 
there  is  a  conflict,  or  seeming  conflict,  involving  the  prop- 
erty-interests of  a  defendant.  The  constitutional  guaran- 
tee of  "due  process  of  law"  relates  to  the  original  suit 
in  which  there  was  no  service  of  process,  and  the  court, 
consequently,  acquired  no  jurisdiction  of  the  person  of 
the  defendant;  and  not  to  another  suit,  on  an'  entirely 
different  cause  of  action  and  against  a  different  person, 
which  the  injured  party  may,  under  a  state  statute,  insti- 

"i  Miedreich    v.    Laiienstein,    232  8  Id. 

U.  S.  236,  247,  58   L.   Ed.  584,  591, 
34  Sup.  Ct.  Rep.  309. 

20i 


Ch.  X,]  RELIEF  FROM  FALSE  RETURN.  §  163 

tute.  The  doctrine  announced  by  Mr.  Justice  Day,  car- 
ried to  its  logical  conclusion,  would  put  an  end  to  all 
preventive  relief  by  injunction, — e.  g.  an  injunction  to  pre- 
vent the  infringement  of  a  trade-mark  or  a  trade-name,* 
and  the  like, — because  the  injured  party  has  a  right  of 
action  at  law  for  the  wrong  done  or  tort  committed,  no 
matter  how  unsatisfactory  and  inadequate  the  relief  to 
be  obtained  in  a  court  of  law.  Simply  to  state  this  propo- 
sition in  its  legitimate  conclusion,  is  to  refute  the  sound- 
ness of  the  doctrine  announced. 

§  163. Loss    OF    RIGHT.      The 

remedy  of  a  party  injured  by  a  collusively  criminal  and 
fraudulently  false  return,  or  even  a  negligent  false  re- 
turn, in  an  action  on  the  bond  against  the  sheriff  and  his 
sureties,  should  in  all  instances  be  rigidly  enforced ;  but 
the  wronged  party  must  be  wary  and  vigilant,  or  he  will 
lose  his  right  of  action  against  the  sheriff  and  his  bonds- 
men, the  same  as  he  will  lose  his  right  to  maintain  a  suit 
in  equity  for  relief  against  a  default  judgment  rendered, 
without  service  of  process,  under  a  false  return  by  the 

9  CAL.— Pierce    v.    Guittard,    68  589.   OHIO— Drake  Medicine  Co.  v. 

Cal.  68,  58  Am.  Rep.  1,  8  Pac.  645;  Glessner,  68  Ohio  St.  337,  359,  67 

Schmidt  v.  Brieg,  100  Cal.  672,  680,  N.    E.    722,    728.      TEX.— Duke    v. 

22  L.  R.  A.  790,  35  Pac.  623;  Wein-  Cleaver,  19  Tex.  Civ.  App.  218,  46 

stock  V.   Marks,   109   Cal,   536,   50  S.  W.  1128.    FED.— Lawrence  Mfg. 

Am.  St.   Rep.  57,  61,  30   L.    R.   A.  Co.    v.    Tennessee    Mfg.    Co.,    138 

182,  42  Pac.  142;  Italian-Swiss  Col-  U.  S.  537,  43  L.  Ed.  997,  11  Sup.  Ct. 

ony  V.  Italian  Vineyard  Co.,  158  Cal.  Rep.   402;    Burton   v.   Stratton,   12 

252,  259,  32  L.  R.  A.   (N.  S.)   439,  Fed.  696;  White  Lead  Co.  v.  Curry, 

110     Pac.     913.       KY.— Avery     v.  25  Fed.  125;  Royal  Baking  Powder 

Meikle,  81  Ky.  73.     MINN.— Rick-  Co.  v.  Davis,  26  Fed.  293;    Societe 

ard    v.    Canton    College    Co.,     88  Anonyme     v.    Western     Distilling 

Minn.  242,  247,  92  N.  W.  958,  959;  Co..  43  Fed.  416;  Putnam  Nail  Co. 

N-ssne  v.  Sundet,  93  Minn.  299,  106  v.  Bennett,  43  Fed.  800;  California 

Am.  St.  Rep.  439,  101  N.  W.  490.  Fig    Syrup    Co.    v.    Improved    Fig 

MO.— Fillery    v.    Fassett,    44    Mo.  Syrup  Co.,  51  Fed.  296;  Cleveland 

169,  173,  100  Am.  Dec.  275.  N.  Y.—  Stove  Co.  v.  Wallace,  52  Fed.  431, 

Springs  Co.  v.  Springs  Co.,  45  N.  Y.  438;  Bissell  Chilled  Plow  Works  v. 

291,  6  Am.  Rep.  82;   Hier  v.  Abra-  T.   M.   Bissell   Plow   Co.,  121  Fed. 

hams,   82   N.   Y.  519,  37   Am.   Rep.  356,  370. 

205 


§  164  CODE  PLEADING  AND  PRACTICE.  [Pt.  1, 

sheriff.^  The  right  of  action  against  the  sheriff  and  his 
bondsmen  being  statutory,  in  derogation  of  the  common 
law,  and  the  remedy  being  regarded  as  harsh,  summary, 
and  susceptible  of  abuse,  the  courts  seem  inclined  to 
strain  a  point  in  order  to  throw  their  protecting  segis 
around  even  a  criminally  collusive  sheriff  who  corruptly 
and  fraudulently  makes  a  false  return.^ 

§  164.  By  person  other  than  sheriff — Affidavit  of 
SERVICE.  We  have  already  seen  that  a  copy  of  the  sum- 
mons and  a  copy  of  the  complaint  may  be  served  by  any 
person  over  the  age  of  eighteen,  who  is  not  a  party  to  the 
action  or  the  attorney  of  the  plaintiff,^  and  that  when 
ser\dce  is  made  by  such  person  the  return  must  be  made 
within  the  same  time  and  at  the  same  place  required 
where  the  service  of  the  summons  and  complaint  is  made 
by  the  sheriff.^  This  return  made  by  a  person  other  than 
the  sheriff  is  required  to  be  accompanied  with  an  af6.da\T.t 
of  the  person  making  the  service  stating  the  fact:  (1)  Of 
the  service  of  the  summons  on  the  defendant,  and  (2)  of 
the  service  of  a  copy  of  the  complaint,  where  a  copy  of 
the  complaint  is  served.^  An  affidavit  of  service  of  proc- 
ess must  show  affirmatively  a  substantial  compliance,  by 
the  person  making  the  service,  "with  the  statute  or  code 
section  under  which  such  service  is  made,*  as  no  presmnp- 
tions  can  be  indulged  to  help  out  a  faulty  affidavit  of 
service;^  except  that,  in  those  cases  where  the  affidavit 
states  the  county  of  service,  and  the  defendant  makes 
default,  nothing  appearing  to  the  contrary,  it  will  be  pre- 

1  See,  ante,  §§  160,  161.  4  McMillan  v.  Reynolds,  11  Cal. 

2  See  Morgan  v.  Williams,  66  372,  378;  People  v.  Bernal,  43  Cal. 
Wash.  649,  38  L.  R.  A.  (N.  S.)  292,  385,  389;  Linott  v.  Rowland,  119 
120  Pac.  106.  Cal.  452,  453,  51  Pac.  687;  Goodale 

See  full  collection  of  authorities  v.  Coffee,  24  Ore.  346,  354,  .^.3  P^c. 

in  note  38  L.  R.  A.  (N.  S.).  292-295.  990.  ArM-.OK 

.1  See,  ante,  1151.-  5  Black  v.  Clendenin,  3  Mont.  44, 

.aid.  J  l.-jifiri'-  47;    Lonkey  v,  Keyes   Silver  Min. 

.^Kerr's     Cyc.     Cal.     Code     Civ.  Co.,  21  Nev.  312,  320,  1.7,.^.  Jl.x(ft. 

Proc,  §  410.  351,  31  Pac.  57.  (ig  ^&m/iil 

206 


eh.  X.] 


SERVICE  BY  OTHER  THAN  SHERIFF. 


§164 


sumed  that  the  defendant  was  a  resident  of  the  county  in 
which  the  service  was  made."  To  be  sufficient,  an  affidavit 
of  sorvice  of  summons  must  state:  (1)  That  the  party 
making-  the  service  was  over  the  age  of  eighteen  years  at 
the  time  of  making  such  service/  an  allegation  that  he 
was  over  such  age  at  the  time  of  making  the  affidavit  or 
proof  of  service  is  not  sufficient,  and  will  not  sustain  a 
judgment  by  default;^  (2)  must  show  that  the  party 
making  the  service  was  one  of  the  persons  described  in 
the  statute;^  (3)  must  show  service  of  a  copy  of  the  sum- 
mons upon  the  defendant  in  the  county  ;^*^  (4)  must  show 
service  of  a  copy  of  the  complaint  upon  the  defendant 
within  the  county,  where  such  copy  was  served  ;^^  (5) 
must  show  the  time  of  service  ;^-  (6)  must  show  the  place 
of  service;  ^^  and  (7)  must  be  duly  verified.^* 

0  Black  V.  Clendenin,  3  Mont.  44, 


«  Calderwood  v.  Brooks,  28  Cal. 
1-51;  Pellier  v.  Gillespie,  2  Cal. 
Unrep.  407,  4  Pac.  1137,  67  Cal.  582, 
583,  8  Pac.  185. 

7  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  410;  Lyons  v.  Cunningham, 
Gil  Cal.  42,  4  Pac.  938;  Cooper  v. 
Superior  Court,  26  Cal.  App.  629, 
147  Pac.  606. 

^  Maynard  v.  MacCrellish,  57 
Cal.  355;  Howard  v.  Galloway,  60 
Cal.  10;  WeiU  v.  Bent,  60  Cal.  603; 
Lyons  v.  Cunningham,  66  Cal.  42, 
4  Pac.  938;  Horton  v.  Gallardo,  88 
Cal.  581,  26  Pac.  375. 

A  recitation  in  affidavit  of  ser- 
vice of  summons  that  the  person 
making  the  affidavit  was  "a  white 
male  citizen  of  the  United  States" 
was  held  not  sufficient  designation 
of  age. — Lyons  v.  Cunningham,  66 
Cal.  42,  4  Pac.  938. 

Affidavit  stating  facts  showing 
person  making  it  a  competent  wit- 
ness, has  been  said  to  be  sufficient 
without  stating  that  he  is  compe- 
tent.—Dimick  v,  Campbell,  31  Cal. 
238. 


47. 

10  Schloss  V.  White,  16  Cal.  65, 
66;  McKinlay  v.  Tuttle,  42  Cal. 
570,  577;  People  v.  Bernal,  43  Cal. 
385,  389;  Linott  v.  Rowland,  119 
Cal.  452,  453,  51  Pac.  687. 

Default  judgment,  where  affida- 
vit of  service  of  summons  does 
not  show  service  on  defendant,  is 
erroneous. — Reinhart  v.  Lugo,  86 
Cal.  395,  21  Am.  St.  Rep.  52;  Lin- 
ott V.  Rowland,  119  Cal.  452,  453, 
51  Pac.  687. 

"Duly  served"  being  the  only  re- 
turn held  insufficient. — Stutts  v. 
Outcault,  4  N.  J.  L.  (1  South.)  130. 

11  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  410;  McMillan  v.  Reynolds, 
11  Cal.  372,  379;  Reynolds  v.  Page, 
35  Cal.  296,  300. 

12  See,  post,  §§  207  et  seq. 

See,  also,  Greenman  v.  Harvey, 
53  111.  386. 

13  See,  post,  §  210. 

14  Lay  ton  v.  Trap,  20  Mont.  453, 
456,  52  Pac.  208. 

For  form  of  affidavit  of  service 


207 


§§  165,  166       CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

<§  165. Amendment  of  affidavit.     It  is  not 

the  proof  of  service/  but  the  fact  of  service^  of  process 
and  copy  of  the  complaint  which  gives  the  court  jurisdic- 
tion f  and  the  trial  court  may  allow  the  proof  of  service 
to  be  amended  and  filed  nunc  pro  tunc  as  of  the  date  of 
the  judgment,  where  such  proof  appears  to  have  been 
defective  or  insufficient  when  the  judgment  was  entered.^ 
Thus,  it  has  been  said  that  after  judgment  rendered  in  an 
action  of  divorce,  and  before  the  roll  is  made  up,  the 
court  has  authority  to  receive  amended  affidavits  showing 
a  service  of  summons  by  publication.^ 

3.    Upon  Whom  Service  To  Be  Made. 

§  166.  In  general.  Service  of  process  or  summons,  to 
be  regular  and  sufficient,  must  always  be  made  in  the 
manner^  and  upon  the  person  or  persons  prescribed  and 
directed  in  the  statute  under  which  it  is  made.  In  Cali- 
fornia, a  copy  of  the  summons  and  a  copy  of  the  com- 
plaint must  be  served  personally^  upon  the  defendant 

of  summons  on  several  defendants,  3  See,  ante,  §§  118,  151. 

see  Jury's  Adjudicated    Forms  of  4  Allison  v.  Thomas,  72  Cal.  562, 

Pleading  and   Practice,  vol.  12,  p.  554^  ^  ^^^   gt.  Rep.  89,  14  Pac.  309; 

1855,  Form  No.  1139.  Newman,   Estate   of,   75   Cal.    213, 

Service  by  notary  public  of  copy  220,   7  Am.  St.   Rep.  146,   16  Pac. 

of  the  summons  and  copy  of  the  gg^.    Herman  v.   Santee,  103   Cal. 

complaint  must  be  proved  by  his  55^9^  42  Am.  St.  Rep.  145,  37  Pac. 

affidavit;  his  mere  certificate  is  in-  5^9 .    g^-r  v.    Seymour,    43    Minn, 

sufficient.— Yolo  County  v.  Knight,  4qj^  ^^9  ^m.  St.  Rep,  245,  45  N.  W. 

70  Cal.  431,  436,  11  Pac.  662.  7^5.   Shenandoah  Valley  R.  Co.  v. 

1  Reiniiart  v.  Lugo,  86  Cal.  395,  Ashby's   Trustees,  86  Va.   252,   19 

400,   21   Am.   St.    Rep.   52,   24   Pac.  Am.  St.  Rep.  898,  9  S.  E.  1003;  Fisk 

1089,  holding  that  if  proof  of  ser-  .^   Reigelman,  75  Wis.  499,  17  Am. 

vice  was  not  made  as  required  by  g^_    Rep.   198,   43   N.   W.    1117,   44 

law,   the   court  acquires  no  juris-  j^  -^  .^gg 

diction  of  the  persons  of  the  defen-  <.  r,r  /-.  1   01c 

,     ^          ,  ,                 xu      *     *        X,  5  Newman,  Estate  of,  75  Cal.  215, 

dants,  and  has  no  authority  to  ren-  „.   r,       -..^  -./.t^       o^jt 

.     .    .,    _     „„  ,  7  Am.  St.  Rep.  146,  16  Pac.  867. 

der   judgment   agamst  them,   and  "^ 

that  any  judgment  rendered  is  in-  ^  As  to  manner  or  mode  of  ser- 

valid    and    void,    is    against    the  v'ce,  see,  post,  §§  181-205. 

weight  of  authority.  2  As    to    personal    service,    see, 

2  Herman  v.  Santee,  103  Cal.  519,  ante,  §  148. 
42  Am.  St.  Rep.  145,  37  Pac.  509. 

208 


t!l.  X.]  WHO  TO  BE  SERVED.  §  166 

named  in  the  summons,^  except  in  those  cases  where  the 
action  is  against  (1)  a  domestic  corporation,^  (2)  a  for- 
eign corporation,^  (3)  a  minor,  under  the  age  of  fourteen 
years,  residing  within  the  state,''  (4)  a  person  who  has 
been  judicially  declared  to  be  (a)  of  unsound  mind,  or 
(b)  incapable  of  conducting  his  own  affairs,  and  who 
resides  within  the  state, "^  or  (5)  a  county,  city,  or  towTi;^ 
in  all  of  which  cases  the  service  of  the  summons  must  be 
made  upon  the  person  or  persons  designated  in  the  stat- 
ute, instead  of  upon  the  defendant  named  in  the  action 
and  the  summons.*^  Another  exception  to  the  rule  re- 
quiring personal  service  upon  a  defendant  who  is  a  resi- 
dent of  the  state  exists  in  those  cases  in  which  the  defen- 
dant has  departed  from  the  state;  or  can  not,  after  due 
diligence,  be  found  within  the  state ;  or  conceals  himself 
to  avoid  the  service  of  summons, — in  either  of  which  cases 
service  may  be  made  by  publication  instead  of  personal 
service.^*^  A  valid  service  of  summons  can  not  be  made 
upon  an  attorney  in  fact  of  the  defendant  in  the  action. ^^ 

3  Kerr's    Cyc.     Cal.    Code     Civ.      Proc,  2d  ed.,  §411,  subd.  4;  Bien- 
Proc,  2d  ed.,  §411,  subd.  6;  Bien-      nial  Supp.  1915,  p.  3058. 

nial  Supp.  1915,  p.  3058.  As  to  service  of  summons  upon 

4  Kerr's     Cyc.     Cal.     Code     Civ.      insane   person    or   other  incompe- 
Proc,  2d  ed.,  §  411,  subd.  1;  Bien-      tent,  see,  post,  §  176. 

nial  Supp.  1915,  p.  3058.  ^  See  Kerr's  Cyc.  Cal.  Code  Civ. 

As   to    service    of   summons    on      P™^'  ^d  ed.,  §411,  subd.  5;  Bien- 
domestic    corporation,    see,    post,      nial  Supp.  1915,  p.  3058. 
§§  167  168  ^®  *°  service  of  summons  upon 

county,    city,    or   town,    see,    post, 


5  See  Kerr's  Cyc.  Cal.  Code  Civ 
Proc,  2d  ed.,  §411,  subd.  2;  Bien 
nial  Supp.  1915,  p.  3058. 


§173. 

9  Kerr's     Cyc.     Cal.     Code    Civ. 

Proc,  2d  ed.,  §  411;  Biennial  Supp. 

As  to  service  of  summons  on  for-      1915    n    3058 

eign  corporation,  see,  post,  §§  169-  loKerr's    Cyc    Cal.    Code    Civ. 

I'^'l-  Proc,  2d  ed.,   §412;    Consolidated 

6  See  Kerr's  Cyc.  Cal.  Code  Civ.      Supp.  1906-1913,  p.  1436.   See,  post, 
Proc,  2d  ed.,  §411,  subd.  3;  Bien-      §§  193  et  seq. 

nial  Supp.  1915,  p.  3058.  As  to  constructive  or  substituted 

As  to  service  of  summons  upon       service  against  resident  defendant, 

such  infant,  see,  post,  §§  174,  175.  see  note  50  L.  R,  A.,  pp.  585  et  seq. 

7  See  Kerr's  Cyc  Cal.  Code  Civ.  11  Drake  v.  Duvenick,  45  Cal.  455. 
I  Code  PI.  and  Pr. — 14                         209 


§  167  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

But  it  has  been  held  that  in  a  case  where  there  are  several 
defendants,  personal  ser\dce  of  the  summons  upon  one  of 
such  defendants,  without  delivering  a  copy  of  the  com- 
plaint to  any  of  such  defendants,  does  not  render  the 
judgment  void,^^  but  voidable,  only.^"  Process  served 
upon  a  person  of  the  same  name  as  that  of  the  defendant 
named  in  the  summons,  confers  on  the  court  jurisdiction 
over  the  person  of  the  person  served  ;^^  but  service  on  a 
person  of  a  different  name  does  not,  in  the  absence  of  an 
appearance  by  such  person. ^^ 

§  167.  Domestic  corpoeatiox.  A  corporation,  either 
domestic  or  foreign,  must  be  properly  brought  into  court 
by  due  service  of  process  in  the  manner  and  upon  a  person 
prescribed  by  the  statute,  the  same  as  a  natural  person ; 
the  mere  fact  that  a  defendant  corporation  has  knowledge 
of  the  pendency  of  an  action  against  it  will  not  dispense 
with  the  necessity  for  proper  service.^  In  California,  a 
domestic  corporation  formed  under  the  laws  of  the  state, 
is  to  be  served  with  process  by  delivering  a  copy  of  the 
summons  and  a  copy  of  the  complaint  to  the  president  or 
other  head  of  the  corporation,  vice-president,  secretary, 
assistant  secretary,  cashier  or  managing  agent  thereof.- 
This  statute  is  substantially  an  enactment  of  the  common- 
law  rule,  under  which  the  officers  were  regarded  as  repre- 
senting the  corporation  and  to  be  served  with  process, 
service  upon  them  being  service  upon  the  corporation;^ 
but  such  service  was  required  to  be  accompanied  with  a 

12  Sacramento     Sav.     Bank     v.  2  Kerr's     Cyc.     Cal.     Code     Civ. 

Spencer,  53  Cal.  737,  740.  Proc,  2d  ed.,  §411,  subd.  1;  Bien- 

i"Keybers  v.  McComber,  67  Cal.  nial  Supp.  1915,  p.  3058. 

395,  399,  7  Pac.  838.  3  Hartford  City  Fire  Ins.  Co.  v. 

14  See,  ante,  §  145.  Carrugi,  41   Ga.  670;    McQueen  v. 

15  Booth  V.  Holmes,  2  Posey  Un-  Middleton  Mfg.  Co.,  16  Johns, 
rep.  Cas.  (Tex.)  232;  Elliott  v.  (N.  Y.)  5;  Barnett  v.  Chicago  & 
Holmes,  1  McL.  466,  Fed.  Cas.  No.  L.  H.  R.  Co.,  4  Hun  (N.  Y.)  114, 
4392.  6  Thomj).  &  C.  358;    Merriwether 

1  Osborne  v.  Columbia  County  v.  Bank  of  Hamburg,  Dud.  (S.  C.) 
Farmers'  Alliance  Corp.,  9  Wash.  36;  Glaize  v.  South  Carolina  R. 
666.  38  Pac.  160.  Co.,  1  Strobh.  L.  (S.  C.)  73. 

210 


eh.  X.]  SERVICE  ON   DOMESTIC  CORrORATIOX.  §  .167 

distringas ;  so  that  if  the  corporation  had  neither  personal 
projjerty  nor  real  estate,  it  could  not  be  compelled  to 
appear  either  at  law  or  in  equit3\  To  remedy  this  defect 
laws  have  been  passed  in  all  the  jurisdictions  in  this  coun- 
try, similar  in  character  to  the  California  statute.  Where 
such  a  statute  exists,  service  of  process  upon  a  corpora- 
tion must  be  made  by  serving  the  summons  upon  one  of 
the  officers,  agents,  manager,  and  the  like,  enumerated  in 
the  statute,  and  so  made  is  valid  and  sufficient;  but  the 
provisions  of  the  statute  must  be  followed.^  The  maxim, 
ita  lex  scripta  est,  applies  with  full  force,  and  where  the 
statute  designates  particular  officers  or  persons  of  a  cor- 
poration upon  whom  service  of  process  may  be  made,  this 
designation  excludes  all  others.^  Thus,  a  return  of  the 
sheriff  showing  service  of  the  process  ''upon  Robert 
McCall  and  William  M.  Clary,  the  president  and  secre- 
tary" of  the  defendant  corporation,  is  prima  facie  suffi- 
cient, without  proof  beyond  the  mere  return  that  the 
persons  served  are  such  officers  of  the  corporation;^  but 
a  return  of  service  upon  ''Collons  C.  Baker,"''  or  upon 
''James  Street,  one  of  the  proprietors,"^  is  insufficient, 
because  it  does  not  show  that  service  was  made  upon  one 

4  Cairo  &  S.  F.  R.  Co.  v.  Trout,  9   Sup.   Ct.   Rep.   530;    Tallman   v. 

32  Ark.  17,  23;    Southern  B.  &  L.  Baltimore    &    O.    R.    Co.,    45    Fed. 

Assoc.  V.  Hallum,  59  Ark.  583,  586,  156. 

28    S.    W.    420;    Aiken    v.    Quartz  c  Howe  v.  Table  Mountain  Water 

Rock   Mariposa  Gold    Min.    Co.,   6  Co.,  16  Cal.  441,  444;  Blanc  v.  Pav- 

Cal.  186;  O'Brien  v.  Shaw's  Flat  &  master   Min.    Co.,   95   Cal.   524,   29 

Tuolumne  Canal  Co.,  10  Cal.  343;  Am.    St.    Rep.    149,    30    Pac.    765; 

Great  Western  Min.  Co.  v.  Wood-  Dickerson  v.  Burlington   &  M.   R. 

mas  of  Alston  Min.  Co.,   12  Colo.  Co.,    43    Kan.    702,    23    Pac.    936; 

46,  51,  13  Am.  St.  Rep.  204,  209,  20  Blodgett  v.   Schaffer,  94   Mo.   652, 

Pac.    771;     Gillig    v.    Independent  7  S.  W.  436;  Mathias  v.  White  Sul- 

Gold  &   S.  Min.  Co.,   1   Nev.   247;  phur  Springs  Assoc,  17  Mont.  452, 

Lonkey  v.  Keyes  Silver  Min.  Co.,  43  Pac.  921. 

21  Nev.  317,  17  L.  R.  A.  351,  31  Pac.  7  Willamette    C,   M.    &    Transp. 

59;   Watertown,  City  of,  v.  Robin-  Co.  v.  Williams,  1  Ore.  112. 

son,  69  Wis.  23'3,  34  N.  W.  139.  s  O'Brien  v.  Shaw's  Flat  &  Tuol- 

n  Amy  V.  Watertown.  City  of,  130  unine  Canal  Co.,  10  Cal.  343. 
U.   S.  301,  317,  32   L.  Ed.  946,  951, 

211 


§168 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I, 


of  the  persons  designated  in  the  statute  as  a  person  upon 
whom  service  of  process  may  be  made. 


§168. 


Construction     of     statute  —  Instances. 


Under  statutes  regulating  the  service  of  process  upon 
corporations,  with  provisions  substantially  similar  to 
those  in  California,  it  is  generally,  if  not  universally,  held 
that  a  service  of  a  summons  upon  the  president,  secretary, 
cashier,  or  general  manager,  is  sufficient  service;^  but 
where  the  ''head  officer"-  or  "managing  agent "^  is 
served,  to  be  a  sufficient  service,  the  position  of  the  person 
served  must  be  such  that  his  knowledge  is  the  knowledge 
of  the  corporation.  "General  manager"  served,  the  ser- 
vice will  be  insufficient,  in  Oklahoma,  unless  the  return 
shows  that  the  president  of  the  corporation  or  chairman 
of  the  board  of  trustees  was  out  of  the  county;*  but  in 
Colorado  a  service  of  process  on  the  vice-president  of  a 
corporation  is  sufficient,  although  the  return  does  not 
show  that  the  president  could  not  be  found  in  the  county.-"' 
A  manager  serv^ed  must  be  a  person  who  has  the  general 
charge  of  the  affairs  of  the  corporation;*'  the  manager  of 
a  particular  part  or  branch  or  department  of  the  business 
of  such  corporation,  is  not  such  a  person  as  the  statute 
authorizes  service  of  process  to  be  made  upon.'  A  cashier 
being  authorized  to  be  served,  service  of  process  ui)ou  an 
assistant  cashier  in  charge  of  a  branch  of  the  business. 


1  See,  among  other  cases,  Cham- 
berlin  v.  Monmouth  Mfg.  Co.,  20 
Mo.  96;  Hartzell  v.  Chicago  &  A. 
R.  Co.,  77  Mo.  315;  McMurtry  v. 
Tuttle,  13  Neb.  232,  13  N.  W.  213; 
Gillig  V.  Independent  Gold  &  S. 
Min.  Co.,  1  Nev.  247;  Willamette 
Falls  C,  M.  &  Transp.  Co.  v.  Will- 
lams,  1  Ore.  112;  Glaize  v.  South 
Carolina  R.  Co.,  1  Strobh,  L. 
(S.  C.)  73. 

2  Newby  v.  Colt's  Patent  Fire 
Arms  Co.,  L.  R.  7  Q.  B.  Cas.  296. 

3  Id. 


4  Ravia  Granite  Ballast  Co.  v. 
Willson,  22  Okla.  692,  98  Pac.  950. 

5  Comet  Consol.  Min.  Co.  v. 
Frost,  15  Colo.  310,  25  Pac.  506. 

6  Upper  Mississippi  Transp.  Co. 
V.  Whittaker,  16  Wis.  220 ;  Carr  v. 
Commercial  Bank,  19  Wis.  272. 

7  Weight  V.  London,  Liverpool  & 
Globe  Ins.  Co.,  30  La.  Ann.  1186; 
Brewster  v.  Michigan  Cent.  R.  Co., 
5  How.  Pr.  (N.  Y.)  183,  3  Code 
Rep.  215;  Emerson  v.  Auburn  &  O. 
L.  R.  Co.,  13  Hun  (N.  Y.)   150. 


212 


ell.  X.]  SERVICE  ON  FOREIGN   CORPORATION.  §  169 

is  an  insufficient  service.^  A  clerk  being  a  party  author- 
ized to  be  served  for  the  corporation,  service  can  not  be 
made  upon  an  assistant  or  deputy  clerk.^  A  foreman  of 
one  of  the  mines  of  a  mining  corporation,  who  is  under 
the  orders  of  and  makes  his  reiDorts  to  the  corporation's 
general  agent,  is  not  a  proper  party  upon  whom  to  seek 
to  make  service  of  the  corporation  by  delivering  to  him  a 
copy  of  the  summons  and  copy  of  the  complaint.^*'  The 
treasurer  of  a  corporation  being  designated  as  a  person 
upon  whom  service  of  process  on  the  corporation  may  be 
made,  service  made  by  delivery  of  the  copy  of  the  sum- 
mons to  an  assistant  treasurer  was  held  to  be  void,  for 
the  reason  that  such  assistant  treasurer  was  ''not  the 
president  or  other  head  of  the  corporation,  the  cashier 
or  treasurer,  or  a  director  or  managing  agent.  "^^ 

§  169.  Foreign  corporation.  When  an  action  is  against 
a  foreign  corporation,  joint-stock  company  or  association, 
doing  business  and  having  a  managing  or  business  agent, 
cashier  or  secretary  within  the  state,  the  California  code 
provides  that  service  of  process  may  be  made  upon  such 
foreign  coiTDoration,  joint-stock  company  or  association 

8  Karns  v.  State  Bank  &  Trust  Rapid  Transit  Co.,  51  Hun  (N.  Y.) 
Co.,  31  Nev.  175,  178,  101  Pac.  566,  298,  4  N.  Y.  Supp.  169,  affirming  15 
567.  N.   Y.    Civ.    Proc.    Rep.    202.      See 

9  "Service  of  summons  on  a  cor-  Kennedy  v.  Hibernia  Sav.  &  L. 
poration  can  not  be  made  on  every  Soc,  38  Cal.  151,  154;  Reinhart  v. 
person  who  may,  in  some  remote  Lugo,  86  Cal.  395,  21  Am.  St.  Rep. 
sense,  be  styled  a  clerk  of  the  cor-  52,  24  Pac.  1089;  Cloud  v.  Price 
poration.  It  could  not  be  made  on  City,  86  Mo.  362;  Scorpion  S.  Min. 
a  deputy  or  under  clerk.  It  must  Co.  v.  Marsano,  10  Nev.  376;  Jep- 
be  made  on  the  principal  clerk  of  son  v.  Postal  Tel.  Cable  Co.,  22 
the  corporation,  if  made  on  the  N.  Y.  Civ.  Proc.  Rep.  434,  20  N.  Y. 
clerk  at  all." — Chambers  v.  King  Supp.  300;  Watertown,  City  of,  v. 
Wrought  Iron  Bridge  Co.,  16  Kan.  Robinson,  59  Wis.  515,  17  N.  W. 
276.  542;    Mariner  v.   Waterloo,   Town 

loGreat  West  Min.  Co.  V.  Wood-  of,    75    Wis.    440,    44    N.    W.    512; 

mas  of  Alston  Min.   Co.,   12  Colo.  Kibbe    v.    Benson,    84    U.    S.    (17 

46,  13   Am.   St.    Rep.   204,   20  Pac.  Wall.)    625,    627,    21    L.    Ed.    724; 

771.  Alexandria,  City  of,  v.  Fairfax,  95 

iiWinslow     v.     Staten     Island  U.  S.  774,  779,  24  L.  Ed.  583,  585. 

213 


§  169  CODE   PLEADING   AND    PRACTICE.  [Pt.  I, 

by  delivering  a  copy  of  the  summons  and  a  copy  of  the 
complaint  to  the  resident  managing  or  business  agent, 
cashier  or  secretary.^     A  like  provision  is  found  in  the 
statutes  of  most,  if  not  all,  of  the  jurisdictions.^    In  those 
cases  in  which  a  foreign  corporation  sued  has  no  manag- 
ing or  business  agent,  cashier  or  secretary,  or  other  officer 
upon  whom  service  of  summons  may  be  served,  who  after 
due  diligence  can  be  found  mthin  the  state,  under  the 
California  code,  service  may  be  made  by  publication  and 
mailing  a  copy  of  the  published  notice,^  or  by  a  personal 
service  of  a  copy  of  the  summons  and  a  copy  of  the  com- 
plaint out  of  the  state.*    Other  jurisdictions  have  similar 
pro\4sions.     In  some  jurisdictions  the  law  requires  all 
foreig-n  corporations  doing  business  within  the  state  to 
appoint  an  agent  within  the  state  upon  whom  service  of 
process  may  be  made ;  and  the  foreign  corporation  failing 
in  that,  providing  that  ser\dce  of  the  summons  upon  a 
designated  state  officer  shall  be  sufficient, — and  this  is  a 
valid  provision.    But  in  the  case  of  domestic  corporations, 
where  the  law  provides,  as  it  does  in  some  jurisdictions, 
that  domestic  corporations  shall  file  vrith  the  register  of 
deeds,  or  other  named  county  officer,  of  the  county  in 
which  the  principal  office  of  the  corporation  is  located,  a 
list  of  its  officers  upon  whom  service  of  process  may  be 
made,  and  that  until  such  list  of  officers  is  filed,  service  of 
process  on  the  corporation  may  be  made  by  leaving  a  copy 
of  the  summons  with  such  designated  county  officer,  has 
been  held  to  be  unconstitutional.^ 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  Sioux  City  Nursery  &  Seed  Co.,  6 
Proc     2d  ed  ,  §  411,  subd.  2;   Bien-      Utah  431,  24  Pac.  532. 

nial  Supp.  1915.  p.  3058.  '  Kerr's     Cyc.     Cal.     Code     Civ. 

•xu  Proc,  2d  ed.,   §412;    Consolidated 

As  to  who  may  be  served  with  ^^^^   i906-1913,  pp.  1436,  1438. 

process  in  action  against  a  foreign  4  Kerr's     Cyc.     Cal.     Code     Civ. 

corporation,  see  notes  23  L.  R.  A.  pj-^g     §  45^3 

490;  4  L.  R.  A.  (N.  S.)  460.  5  Pinney  v.  Providence  Loan  & 

2  See  Aldrich  v.  Anchor  Coal  &  invest.  Co.,  106  Wis.  396,  80  Am. 
Devel.  Co.,  24  Ore.  32,  41  Am.  St.  St.  Rep.  41,  50  L.  R.  A.  577,  82 
Rep.  831,  32  Pac.  756;  Saunders  v.  X.  W.  308. 

214 


eh.  X.]  CONSTRUCTION  OF   STATUTE.  §  170 

<§  170.  Construction  of  statute — Instances.  Un- 
der the  common-law  rule  a  corporation  could  not  be 
brought  within  the  jurisdiction  of  a  court  by  the  service 
of  process  upon  an  officer  thereof  outside  of  the  state  by 
which  such  corporation  was  created  ;^  but  in  all  the  juris- 
dictions in  the  Union,  foreign  corporations  are,  by  statute, 
made  suable,  with  varying  conditions  as  to  the  right  and 
as  to  the  manner  of  the  service  of  process,  where  they  are 
conducting  business  within  the  state,  or  have  specified 
officers,  or  agents,  or  property,  within  the  state;-  and  in 
South  Dakota  and  West  Virginia,  and  perhaps  elsewhere, 
suit  may  be  brought  where  the  cause  of  action  arose 
within  the  state. 

Statutes  regulating  actions  against  foreign  corpora- 
tions, and  prescribing  upon  whom  and  how  process  may 
be  served  will  be  valid,^  providing  the  service  of  process 
specified  is  calculated  to  inform  the  corporation  of  the 
proceedings  against  it,^  and  would  be  valid  as  against  a 
domestic  corporation.^     Service  upon  an  officer  of  such 

1  See  Peckham  v.  North  Parish,  How.  Pr.  (N.  Y.)  218,  230;  Bank  of 
33  Mass.  (16  Pick.)  286;  Moulin  v.  Augusta  v.  Earle,  38  U.  S.  (13  Pet.) 
Trenton  Mut.  Life  &  Fire  Ins.  Co.,  519,  10  L.  Ed.  27;  Ohio  &  M.  R.  Co. 
24  N.  J.  L.  (4  Zab.)  222,  224;  Mc-  v.  Wheeler,  66  U.  S.  (1  Black.)  297, 
Queen  v.  Middletown  Mfg.  Co.,  16  17  L.  Ed.  130. 

.Johns.  (N.  Y.)  5,  6;  Barnett  v.  3  State  v.  St.  Mary's  Franco- 
Chicago  &  Lake  Huron  R.  Co.,  4  American  Petroleum  Co.,  58  W.  Va. 
Hun  (N.  Y.)  114,  6  Thomp.  &  C.  108,  112  Am.  St.  Rep.  951,  6  Ann. 
358;  Aldrich  v.  Anchor  Coal  &  Gas.  38,  1  L.  R.  A.  (N.  S.)  558.  51 
Devel.  Co.,  24  Ore.  32,  35,  41  Am.  S.  E.  865. 
St.  Rep.  831,  833,  32  Pac.  756.  See  authorities  collected  in  notes 

2  See,  among  many  other  author-  6  Ann.  Cas.  42,  1  L.  R.  A.  (.\.  S.) 
ities,  Lathrop  v.  Union  Pac.  R.  Co.,  558. 

1  McAr.  (D.  C.)  234;  Dallas  v.  At-  ■»  Pinney  v.  Providence  Loan  & 

lantic  &  M.  R.  Co.,  2  McAr.  (D.  C.)  Inv.  Co.,  i06  Wis.  396,  SO  Am.  St. 

146;    Camden   Rolling   Mill   Co.   v.  Rep.  41,  50  L.  R.  A.  577,  82  X.  W. 

Swede  Iron  Co.,  32  N.  .1.  L.  (3  Vr.)  308. 

15;    Redmond  v.  Enfield  Mfg.  Co.,  r.  Pope  v.  Terre  Haute  Car  .Mfg. 

13    Abb.    Pr.    N.    S.    ( N.    Y.)    332;  Co..  87  N.  Y.  137,  affirming  iM   ilun 

Howell  V.  Chicago  &  N.  W.  R.  Co.,  238,  60  How.  Pr.  419. 

51  Barb.  (N.  Y.)  378;  Whitehead  v.  See  full  collection  of  authorities 

Buffalo  &  Lake  Huron  R.  Co.,  18  in  note  85  Am.  St.  Rep.,  pp.  905-93S. 

215 


§  170  CODE  PLEADING  AND  PRACTICE,  [Pt.  1, 

corporation  designated  in  statutes  like  the  California 
statute  as  an  officer  upon  whom  ser\dce  of  process  may  bo 
made,  is  binding,  notwithstanding  the  fact  that  the  cor- 
poration may  have  no  property  in  the  state  ;^  but  under 
statutes  like  those  of  South  Dakota  and  West  Virginia, 
the  service  would  not  be  sufficient  unless  (1)  the  corpora- 
tion had  property  in  the  state,  or  (2)  the  cause  of  action 
arose  within  the  state.  Service  upon  a  state  officer  desig- 
nated by  statute  as  the  person  upon  whom  service  of 
process  against  a  foreign  corporation  may  be  made  is 
usually  sufficient, — however  it  has  been  said  that  if  such 
state  officer  so  served  makes  no  effort  to  notify  the  cor- 
poration, the  service  will  be  insufficient;'^  but  a  service  of 
process  made  upon  the  deputy  or  clerk  of  the  officer  named 
in  the  statute  will  not  be  sufficient.^  Service  upon  a  per- 
son designated  by  a  foreign  corporation  as  the  person 
upon  whom  service  of  process  may  be  made,  will  be  good 
and  sufficient,  even  though  the  statute  under  which  such 
person  was  designated  has  been  changed  or  repealed,  so 
long  as  the  desigTiation  remains  unrevoked.^  A  * 'cashier" 
designated  in  the  statute  as  a  person  upon  whom  service 
of  process  may  be  made  in  an  action  against  a  foreign 
corporation,  refers  to  an  executive  officer  of  such  corpora- 
tion, and  does  not  include  an  employee  who  is  not  a  man- 
aging agent. ^°  The  statute  providing, — as  in  Utah, — that 
service  of  summons  may  be  made  upon  an  acknowledged 
agent  of  a  foreign  corporation  within  the  state,  and  if 
such  an  agent  can  not  be  found,  then  upon  (1)  any  person 
in  the  employ  of  the  corporation,  or  (2)  upon  any  person 
who  has  any  of  its  property  in  charge,  service  mil  be 
good  which  is  made  upon  an  attorney  of  such  foreign 

6  See    Whitehurst    v.    Kerr,    153  9  Eureka    Lake    &    Yuba    Canal 

N.  C.  79,  68  S.  E.  913.  Co.,  66  Cal.  311,  5  Pac.  490. 

T  Southern  R.  Co.  v.  Simon,  184  As   to    service    on    state   officer, 

Fed.  962.  see  note  23  L.  R.  A.  499. 

8  Lonkey   v.   Keyes    Silver   Min.  lo  Blanc  v.  Paymaster  Min.  Co., 

Co.,  21  Nev.  317,  17  L.   R.  A.  351,  95  Cal.   524,   29   Am.  Ct.   Rep.  149, 

31  Pac.  59.  30  Pac.  756. 

216 


Ch.  X.]  MANAGING  AGENT  OF  CORPORATION.  §  171 

corporation,  who  also  has  some  of  the  property  of  the 
corporation  in  his  charge.^^  Where  by  statute  ser\dce  of 
process  is  allowed  to  be  made  upon  an  agent  of  a  foreign 
corporation  (1)  where  it  has  property  within  the  state, 
or  (2)  the  cause  of  action  arose  within  the  state,  service 
of  summons  upon  a  traveling  salesman  of  such  a  corpora- 
tion which  has  no  property  in  the  state,  and  was  not 
engaged  in  business  in  the  state  and  had  no  agent  or  other 
representative  residing  within  the  state,  was  held  to  be 
good  where  the  cause  of  action  arose  within  the  state,  and 
such  traveling  salesman  was  at  the  time  of  the  service 
engaged  in  transacting  business  within  the  state  for  such 
foreign  corporation.^- 

§  171. ''Managing  agent."    The  question  as 

to  who  is  a  ''managing  agent"  of  a  foreign  corporation, 
within  the  meaning  of  a  statute  pro\iding  for  service  of 
process  upon  such  an  agent,  is  not  free  from  difficulties  ;^ 
but  an  elaborate  discussion  can  not  be  entered  upon  in 
this  place.  Suffice  it  to  say  that  it  has  been  held  that  under 
such  a  statute  an  agent  whose  contract  of  agency  requires 
of  him  an  exercise  of  discretion  and  judgment  in  the 
transaction  of  the  business  affairs  of  his  principal,  and 
who  also  has  charge  of  all  the  business  of  his  principal  in 
his  district,  is  a  "  managing  agent. '  '^  An  agent  in  Cali- 
fornia of  a  foreign  corporation  doing  business  within  the 
state,  wiio  has  general  superintendence  over  the  offices 
and  employees  within  that  state,  is  a  "managing  agent" 
Avithin  the  provisions  of  the  statute,  and  a  person  on 
whom  process  may  be  serv^ed  in  an  action  against  the 

11  Saunders  v.  Sioux  City  Nurs-      authorities  in  notes  in  85  Am.  St. 
ery    &    Seed   Co.,    6   Utah   431,    24      Rep.  905,  55  L.  R.  A.  14G. 

Pac.  532.  1  As    to    who     is    a     "manarjirg 

12  Abbeville  Electric  L.  &  P.  Co.  agent,"  see  note  23  L.  R.  A.   lOij. 
V.  Western  Electrical  Supply  Co.,  i'  Ord     Hardware     Co.     v.     Case 
61  S.  C.  3G1,  85  Am.  St.  Rep.  890,  Threshing    Machine    Co.,    77    Xeb. 
55  L.  R.  A.  146,  39  S.  E.  559:  852,    8    L.    R.   A.    (N.    S.)    773,    110 

See  discussion  and  collection  of      N.  W.  551, 

217 


§  172 


CODE  PLEADING  AND  PRACTICE, 


[Pt.  I, 


corporation.'  An  attorney  in  fact  to  procure  a  patent  to 
a  mining  claim,  is  not  a  managing  agent,*  under  the  South 
Dakota  statute  permitting  service  to  be  made  upon  sucli 
an  agent  (1)  where  the  corporation  has  property  within 
the  state,  or  (2)  where  the  cause  of  action  arose  within 
the  state.^  A  baggage-master,^  or  a  clerk  in  a  store  of 
a  mining  corporation,'^  is  not  a  managing  agent  within  the 
statute ;  but  a  general  passenger  and  freight  agent  within 
the  state,^  and  a  station  agent  within  the  state  who  is 
authorized  to  sell  and  collect  for  tickets  and  to  receive 
freight  and  collect  for  shipments,**  is  such  an  agent  within 
the  statute ;  so  also  is  a  person  acting  under  a  power  of 
attorney  for  a  foreign  insurance  company.^" 

§  172.    Foreign     corporation     not    in    business 

WITHIN   STATE OfFICER  OR  AGENT  CASUALLY  WITHIN   STATE. 

Where  a  foreign  corporation  is  not  engaged  in  business 
within  the  state,  and  has  neither  an  agency  nor  property 
within  the  state,  there  is  no  means  of  bringing  it  within 
the  jurisdiction  of  a  court  by  service  of  process  within  the 
state,  and  the  service  of  process  upon  an  officer  or  agent 
residing  in  another  state,  casually  and  temporarily  within 
the  state  and  not  transacting  any  business  of  the  corpora- 
tion within  the  state,  will  not  confer  jurisdiction  on  the 
courts  of  the  state,  in  the  absence  of  any  statute  author- 
izing such  service,  the  assumption  of  the  law  being  that 


3  Mouser  v.  Union  Pac.  R.  Co., 
243  Fed.  274. 

As  to  station  agent  being  a 
"managing  agent,"  see  footnote  9, 
this  section. 

4  Mars  V.  Oro  Fino  Min.  Co.,  7 
S.  D.  611,  G5  N.  W.  19. 

5  Foster  v.  Charles  Betcher  Lum- 
ber Co.,  5  S.  D.  57,  49  Am.  St.  Rep. 
S59,  23  L.  R.  A.  490,  58  N.  W.  9; 
Christienson  v.  Hardie  &  H.  Mfg. 
&  Supply  Co.,  26  S.  D.  522,  12S 
N.  W.  608, 


6  Flynn  v.  Hudson  River  R.  Co., 
6  How.  Pr.  (N.  Y.)  308,  10  Leg. 
Obs.  158. 

7  See  Blanc  v.  Paymaster  Min. 
Co.,  95  Cal.  524,  29  Am.  St,  Rep. 
149,  30  Pac.  756. 

s  Denver  &  R.  G.  R.  Co.  v.  Rol- 
ler, 41  C.  C.  A.  26,  100  Fed.  742, 
49  L.  R,  A,  81. 

9  Brown  v.  Chicago,  M.  &  St.  P. 
R.  Co.,-  12  N.  D.  69,  102  Am,  St. 
Rep.  564,  95  N.  W.  153. 

10  Bain  v.  Globe  Ins.  Co.,  9  How. 
Pr.   (N.  Y.)   448. 


21S 


:-h.  X.] 


CASUALLY  WITHIN  STATE. 


§172 


the  official  character  of  the  person  thus  served  does  not 
accompany  him,  in  such  a  case,  beyond  the  limits  of  the 
state  creating  the  corporation.^  This  doctrine  is  sup- 
ported by  a  number  of  adjudicated  cases.-  In  those  cases 
in  which  the  statute  provides  for  service  under  such  cir- 
cumstances, it  is  thought  that  by  the  weight  of  authority 
and  the  better  doctrine  on  principle,  the  statute  is  in- 
valid.^ However,  if  such  officer  is  casually  and  temporar- 
il}^  within  the  state  for  the  purpose  of  transacting  any 
business  of  the  corporation,  there  is  authority  to  the  effect 
that  the  service  is  good,^  but  the  contrary  doctrine  is  held 
by  the  weight  of  authority,  both  as  to  numbers  and  the 
better  reason  on  principle.^ 


1  Aldrich  v.  Anchor  Coal  & 
Devel.  Co.,  24  Ore.  32,  41  Am,  St. 
Rep.  831,  32  Pac.  756;  Abbeville 
Electric  Light  &  Power  Co.  v. 
Western  Electrical  Supply  Co.,  61 
S.  C.  361,  85  Am.  St.  Rep.  890,  55 
L.  R.  A.  146,  39  S.  B.  559. 

2  Midland  Pac.  R.  Co.  v.  McDer- 
mid.  91  111.  170;  Peckham  v.  Hav- 
erhill Parish,  33  Mass.  (16  Pick.) 
286;  Newell  v.  Great  Western  R. 
Co.,  19  Mich.  345;  State  v.  District 
Court,  26  Minn.  233,  234,  2  N.  W. 
698;  Latimer  v.  Union  Pac.  R.  Co., 
43  Mo.  105,  97  Am.  Dec.  378;  Mou- 
lin V.  Trenton  Mut.  Life  &  Fire 
Ins.  Co.,  24  N.  J.  L.  (4  Zab.)  222, 
234;  McQueen  v.  Middletown  Mfg. 
Co.,  16  Johns.  (N.  Y.)  5;  Phillips 
V.  Burlington  Library  Co.,  141  Pa. 
St.  462,  23  Am.  St.  Rep.  304,  21 
Atl.  640;  Clews  v.  Woodstock  Iron 
Co.,  44  Fed.  31. 

3  Moulin  V.  Trenton  Mut.  Life  & 
Fire  Ins.  Co.,  24  N.  J.  L.  (4  Zab.) 
222,  224;  Abbeville  Electric  Light 
&  Power  Co.  v.  Western  Electrical 
Supply  Co.,  61  S.  C.  361,  85  Am. 
St.  Rep.  890,  55  L.  R.  A.  146,  39 
\i.    E.    559;    St.    Clair  v.   Cox,    106 


U.  S.  350,  27  L.  Ed.  222.  1  Sup.  Ct. 
Rep.  354;  Good  Hope  Co.  v.  Rail- 
way Barb  Fencing  Co.,  22  Fed. 
265. 

New  York  Code  Civil  Procedure, 
§  432,  construed  to  permit  such 
service. — Pope  v.  Terre  Haute  Car 
Mfg.  Co.,  87  N.  Y.  137,  affirming  24 
Hun  238,  60  How.  Pr.  419. 

Of  this  construction  it  has  been 
said  that  it  is  "so  contrary  to  nat- 
ural justice  and  to  the  principles 
of  international  law,  that  the 
courts  of  other  states  should  not 
sanction  it." — Moulin  v.  Trenton 
Mut.  Life  &  Fire  Ins.  Co.,  24 
N.  J.  L.  (4  Zab.)  222,  224. 

4  Platner  Implement  Co.  v.  Brad- 
ley, Anderson  &  Co.,  40  Colo.  95, 
90  Pac.  86  (where  no  fraud  i)rac- 
ticed  to  procure  the  officer  or 
agent  served) ;  Abbeville  Electric 
Light  &  Power  Co.  v.  Western 
Electrical'  Supply  Co.,  61  S.  C.  361, 
85  Am.  St.  Rep.  890,  55  L.  R.  A. 
146,  39  S.  E.  559. 

r.  Good  Hope  Co.  v.  Railway 
Barb  Fencing  Co.,  22  Fed.  635;  and 
authorities  cited  in  footnote  2,  this 
section. 


219 


§§  173,  174       CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

§  173.  Municipal,  corporation.  Where  an  action  is 
brought  against  a  county,  city  or  town,  the  process  must 
be  served  by  delivering  a  copy  of  the  summons  and  a  copy 
of  the  complaint  to  the  president  of  the  board  of  super- 
visors, or  to  the  president  of  the  council,  as  the  case  may 
be,  or  to  other  head  of  the  legislative  department  of  such 
corporation  ;^  and  when  the  action  is  against  a  school  dis- 
trict, or  other  municipal  corporation  without  legislative 
department,  service  of  process  must  be  made  upon  the 
clerk  of  such  corporation,^  or  upon  other  executive  officer 
thereof.  In  those  cases  in  which  there  are  two  parties 
who  make  adverse  claim  to  be  the  officers  of  a  municipal 
corporation,  service  of  process  should  be  made  upon  the 
de  facto  officer,  the  one  having  possession  of  the  office  and 
conducting  the  affairs  of  the  corporation.^ 

<§.  174.  Infant  or  minor  under  fourteen  years  of  age. 
In  California,  where  the  action  is  against  an  infant,  being 
a  minor  under  fourteen  years  of  age,  residing  within  the 
state,  service  of  the  process  might  be  made,  as  provided 
by  law,  upon  such  infant  personally,  and  also  upon  his 
father,  mother,  or  guardian;  and  where  there  is  neither 
of  these  within  the  state,  then  upon  any  person  having 
the  care  or  control  of  such  infant,  or  with  whom  he  re- 
sides, or  in  whose  service  he  is  employed.^  Under  this 
and  similar  statutes  a  service  of  process  upon  an  infant 
personally,  only,  where  the  record  fails  to  show  that  there 
is  no  father,  mother,  or  guardian,  or  other  person  named 
in  the  statute,  upon  whom  service  of  process  must  also  be 
made,  residing  within  the  state,  will  not  confer  on  the 
court  jurisdiction  over  such  infant,  or  authorize  the  ap- 
pointment of  a  guardian  ad  litem.^ 

1  Kerr's     Cyc.    Cal.    Code    Civ.      13  N.  Y.  Super.  Ct.  Rep.  (6  Duer) 
Proc,  2d  ed.,  §  411,  subd.  5;  Bien-      682,  4  Abb.  Pr.  424. 

nial  Supp.  1915,  p.  3058.  ^  Kerr's    Cyc.     Cal.     Code    Civ. 

Proc,  2d  ed.,  §411,  subd.  3;  Bien- 

2  Downs  V.  Board  of  Directors,  4      ^^j^j  ^^^^   ^9^5^  ^  g^^g 


'\;\^ash.  309.  30  Pac.  147 

ist   Societj 

220 


2  FVank  v.  Webb,  67  Miss.  462,  6 
3  Berrian  v.   Methodist   Society,      So.  620. 


Ch.  X.]  SERVICE   ON    MINOR.  §  175 

Infant  not  served  with  process,  as  required  by  law,  is 
not  a  party  to  an  action  by  the  appointment  of  a  guardian 
ad  litem,  and  especially  is  this  the  case  where  the  record 
fails  to  show  that  the  person  appointed  to  act  as  such 
guardian  accepted  the  trust,  or  appeared  and  defended 
the  action.^  Notice  to  a  person  that  he  has  been  appointed 
to  act  as  guardian  ad  litem  for  such  an  infant,  does  not 
make  the  infant  in  whose  behalf  he  is  appointed  a  defen- 
dant in  the  action  so  as  to  bind  him  by  any  judg-ment  that 
may  be  rendered  therein  ;^  and  a  general  appearance  and 
demurrer  by  counsel  can  not  be  regarded  as  an  appear- 
ance by  an  infant  not  served  with  process.^ 

Appearance  by  an  infant  in  an  action  commenced 
against  another  person,  petitioning  for  permission  to 
intervene  and  be  made  a  party  to  the  action,  and  the 
appointment  of  a  guardian  ad  litem  on  such  petition,  dis- 
penses mth  the  necessity  for  the  service  of  process  upon 
such  infant.® 

§  175.    Action   by   father   against.     Under   the 

California  statute,  and  under  statutes  having  similar  pro- 
\dsions  as  to  service  on  the  father  in  case  of  an  action 
against  an  infant  child  under  fourteen  years  of  age,  resid- 
ing with  the  father,  it  has  been  held  that  a  service  of 
process  upon  the  infant  without  a  service  of  the  process 
on  the  father  is  sufficient,  for  the  reason  that  the  father 
has  notice  of  the  suit  without  such  service.^    In  such  an 

3  Welch  V.  Agar,  84  Ga.  583,  20  "Maxim  lex  non  cogit  ad  vana 
Am.  St.  Rep.  380,  11  S.  E.  149;  will  have  influence  in  applying  the 
Shaefer  v.  Gates,  41  Ky.  (2  B.  rules  of  statutory  construction, 
Mon.)  453,  38  Am.  Dec.  164.  and,  unless  the  letter  of  the  law 

4  Shaefer  v.  Gates,  41  Ky.  (2  B.  absolutely  requires  it,  the  legisla- 
Mon.)  453,  38  Am.  Dec.  164.  ^ure  will  not  be  held  to  have  made 

the  performance  of  any  act  a  pre- 
requisite to  the  acquisition  of  jur- 
isdiction   which    could    afford    no 
6  Burch  V.  Breckenridge,  55  Ky.      protection  to  the  infant,  or  infor- 
(16  B.  Mon.)  482,  63  Am.  Dec.  553.      mation  to  the  natural  guardian."— 
1  Brown  v.  Lawson,  51  Cal.  615.      Id. 

221 


5  Valentine  v.  Cooley,  19  Tenn. 
(Meig.)  613,  33  Am.  Dec.  166. 


§  176  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

action  it  would  be  a  v/ise  precaution  to  require  service  of 
process  upon  the  mother  or  guardian,  where  there  is 
either,  to  insure  proper  aid  to  the  guardian  ad  litem,  an 
adequate  defense,  and  full  protection  of  the  infant's  intci-- 
ests. 

§  176,  Insane  or  otherwise  incompetent  person.  In 
California,  the  case  of  an  action  brought  against  a  person 
residing  within  the  state  w^ho  has  been  judicially  declared 
to  be  of  unsound  mind,  or  incapable  of  conducting  his 
own  affairs,  and  for  whom  a  guardian  has  been  appointed, 
process  must  be  served  in  the  manner  provided  by  law 
personally  upon  such  insane  or  incompetent  person  and 
also  personally  upon  his  guardian.^ 

Not  judicially  declared  insane  or  incompetent  and  a 
guardian  appointed,  service  of  the  process  personally 
upon  such  insane  or  incompetent  person,  gives  the  court 
jurisdiction  over  such  defendant,^  but  a  guardian  ad  litem 
can  not  be  appointed  for  such  a  person  without  personal 
service  upon  him.^  In  New  York,  service  of  process  on 
an  insane  person  who  has  no  committee,  must  be  by  per- 
sonal service  on  such  person."* 

General  guardian  appearing,  the  rule  that  the  appoint- 
ment and  appearance  of  guardians  ad  litem  without  a 
personal  service  of  summons  upon  the  incompetent  is 

1  Kerr's  Cyc.  Cal.  Code  Civ.  Pullman  Palace  Car  Co.,  121  111. 
Proc.  2d  ed.,  §411,  subd.  4;  Bien-  33,  51,  12  N.  E.  213;  Maloney  v. 
nial  Supp.  1915,  p.  3058.  Dewey,  127  111.  395,  404,  11  Am.  St. 

Insane  husband  must  be  person-      ^^P-  ^^'^'  ^^^'  ^^  N.  E.  848;  Woods 
^.        .  ,.       V.  Brown,  93  Ind.  169,  47  Am.  Rep. 

ally  served  in  an  action  for  a  di-      „„„     .^    .  ^   ., 

373;  Ewmg  v.  Wilson,  63  Tex.  90. 

3  Gray   v.    Palmer,    9    Cal.    638; 

.„«  ^  „„„    „^  .  .        Sacramento  Sav.  Bank  v.  Spencer, 

129  Am.  St.   Rep.  636,  35   L.  R.  A,       r-o  n  i    toh     -,  u  or. 

^  53  Cal.  737;  Johnson  v.  San  Fran- 

(N.  S.)   1098,  99  Pac.  291.  .         „         '     .         ^o  ^  ,    r-.     .t 

Cisco  Sav.  Union,  63  Cal.  554;  Mc- 

As  to  judgments  against  insane  ciaskey  v.  Sweeney,  66  Cal.  53,  4 
ond  otherwise  incompetent  per-  pac.  93;  Jessiip  v.  Jessup,  7  Ind. 
sons,  see  130  Am.  St.  Rep.  S45.  ^pp.  577,  34  N.  E.  1017. 

'^  Sacramento  Sav.  Bank  v.  Spen-  4  Heller    v.    Heller,    1    Code    R. 

cer,    53    Cal.    737,    740;     Spsck    v.      (N.  S.)  390,  6  How.  Pr.  194. 

222 


vorce. — State    ex    rel.    Happel    v. 
District  Court,  38  Mont.  166,  170, 


ell.  X.]  SEKVIxNG  JOINT  ASSOCIATION.  §  177 

void,  does  not  apply,^  because  in  conflict  with  the  doctrine 
in  California  as  to  general  guardians,  which  latter  doc- 
trine has  become  a  inile  of  property,^  and  the  error  of  the 
original  decision  in  establishing  the  doctrine,  or  its  inher- 
ent justice  or  injustice,  are  of  less  importance  than  that 
it  should  be  invariable."^ 

§  177.  Joint  association.  Under  the  California  code, 
where  two  or  more  persons,  associated  in  any  business, 
transact  such  business  under  a  common  name,  whether 
such  name  comprises  the  names  of  the  individuals  of  the 
association  or  not,  the  association  may  be  sued  by  such 
common  name,  and  the  service  of  process  on  one  or  more 
of  the  associates  is  sufificient  to  bind  the  joint  property  of 
all  the  associates,  and  also  the  individual  property  of  the 
associates  served  with  the  process,^  in  the  same  manner 
as  if  all  the  associates  had  been  named  as  defendants,- 
and  had  been  sued  upon  their  joint  liability  ;=^  but  in  an 
action  against  such  an  association, — e.  g.,  a  partnership 
firm,— it  Avdll  be  error  to  render  judgment  against  one  of 
the  associates  or  partners  alone."*  A  return  of  a  sheriff 
that  he  served  the  summons  on  one  ''Pendleton,  one  of 
the  partners  and  associates  of  the  company,"  is  prima 
facie  evidence  that  Pendleton  was  such  partner  and  asso- 

5  Richmond  v.  Peterson,  102  Cal.  judgment  in  and  out  of  the  state, 
595,  599.  4  Am.  St.  Rep.  204,  36  see  note  on  "joint  debtors,"  50 
Pac.  923.  L.  R.  A.  595. 

6  Id.;  Smith  v.  McDonald,  42  Cal.  Service  on  managing  partner  of 
484;  Emeric  v.  Alvarado,  64  Cal.  a  firm  sufficient  to  bind  firm  prop- 
529,  597,  2  Pac.  418,  3  Pac.  105.  erty.— Winters  v.  Means,  25  Neb. 

T  Smith    V.    McDonald,    42    Cal.  241,  13  Am.  St.  Rep.  489,  41  N.  W. 

484;  Green  v.  Tenold,  14  N.  D.  50,  157. 

116   Am.   St.    Rep.   638.   103   N.   W.  i'  Ail  named  as  defendants,  those 

399.  alone    who    are    served    bound. — 

1  Before     amendment     of     1907  Maclay  Co.  v.  Meads,  14  Cal.  App. 

there  could  be  no  judgment  against  363,  112  Pac.  195. 

separate  property  of  any  associate  3  Kerr's     Cyc.     Cal.     Code     Civ. 

or  partner,  whether  served  or  not.  Proc,  2d  ed.,   §388;    Consolidated 

—Davidson  v.   Knox,  67   Cal.   143,  Supp.  1903-1913,  p.  1420. 

147,  7  Pac.  413.  4  Craig  v.  Smith,  10  Colo.  220,  15 

As  to  effect  and  validity  of  such  Pac.  337. 

223 


§§  178,  179       CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

ciate.^  But  where  the  smmnons  was  issued  against 
Adams  &  Co.,  and  served  on  C.  B.  Macy,  and  nothing 
appeared  to  connect  Macy  with  Adams  &  Co.,  judgment 
by  default  could  not  be  sustained.^ 

§  178.  Joint  and  several  debtoes.  In  those  cases  in 
which  several  persons  are  sued  upon  a  joint  obligation, 
process  must  be  served  upon  all  the  defendants,  for  those 
not  served  will  not  be  bound  by  the  judgment,^  even 
though  the  debt  be  described  in  the  complaint  as  a  part- 
nership obligation ;-  but  on  service  of  one  and  a  return  as 
to  the  other  or  others  as  not  found,  or  where  one  or  more 
are  nonresidents,  the  plaintiff  may  proceed  against  the 
defendants  served.^  And  it  has  been  held  in  California 
that  service  on  one  of  three  defendants  is  sufficient.^ 

§  179.  Executor  or  administrator.  We  have  already 
seen  that  the  personal  representative  of  a  party  dying 
during  the  pendency  of  a  suit,  and  before  the  comple- 
tion of  the  service  of  process  upon  him,  must  be  notified 
in  his  representative  capacity.^  In  an  action  against  an 
executor  or  administrator  the  complaint  must  run  against 

->  Wilson  V.   Spring  Hill  Quartz  joint  debtors,  though  only  one  is 

Min.  Co.,  10  Cal.  445.  served,  held  erroneous. — Nelson  v. 

<•-  Adams  v.  Town,  3  Cal.  247.  Bostwick,  3  Hill  (N.  Y.)  37,  40  Am. 

1  Wood  V.  Watkinson,  17  Conn.  Dec.  310. 
500.  44   Am.   Dec.   562;    Duryee  v.  2  Golden   State  &  Miners'   Iron- 
Hale,   31   Conn.   217;    St.   John  v.  Works  v.  Davidson,  73  Cal.  389,  15 
Holmes,  20  Wend.  (N.  Y.)  609,  32  Pac.  20;   McCoy  v.  Bell,  1  Wash. 
Am.  Dec.  603.  504,  20  Pac.  595. 

Judgment    joint,    invalid    as    to  3  Bishop  v.  Bull,  1  Day  (Conn.) 

both.— Buffum  v.  Randall,   55  Me.  141;  Southmayd  v.  Backus,  3  Conn. 

252,   92   Am.    Dec.   589;    Hulme  v.  474;  Raney  v.  McRea,  14  Ga.  589, 

Jones,  6  Tex.  242,  55  Am.  Dec.  774.  60  Am.  Dec.  660;  Wright  v.  Harris. 

—Erroneous,     but     not     void.—  24   Ga.    415;    Tappan   v.   Bruen,    5 

Douglass'    Lessee    v.    Massie,    16  Mass.  193;  Call  v.  Haggar,  8  Mass. 

Ohio  271,  47  Am.  Dec.  375.  423;  Parker  v.  Danforth,  16  Mass. 

And  may  be  reversed  as  .to  those  299;    Jones   v.   Penland,   19   N.   C. 

served. — Winchester  v.  Beardin,  29  358. 

Tenn.    (10   Humph.)    247,    51   Am.  4  Sacramento  Sav.  Bank  v.  Spen- 

Dec.  702.  cer,  53  Cal.  737. 

Judgment    against    one    of    two  i  See,  ante,  §  135. 

224 


ell.  X.]  NONRESIDENT  DEFENDANT.  §  180 

him  in  his  representative  capacity,  and  the  process  must 
be  served  upon  him  in  such  capacity.  But  it  has  been  held 
in  California  that  a  misdescription  of  an  administrator  as 
*' executor"  in  the  summons  and  entry  of  default,  in  an 
action  to  enforce  a  street  assessment  against  the  property 
of  a  decedent,  will  not  render  void  a  judgment  enforcing 
the  assessment  upon  such  property,  as  against  the  admin- 
istrator of  the  estate,  if  the  complaint  charges  him  as 
administrator,  and  the  affidavit  of  service  of  summons 
shows  that  he  was  served  as  administrator. ^ 

<^  180.  NoNRESiDEXT  DEFENDANT.  "Wc  havc  already  dis- 
cussed the  service  of  process,  within  the  state,  on  the 
officer  or  agent  of  a  foreign  corporation,  such  officer  or 
agent  being  casually  or  temporarily  within  the  state,  and 
the  corporation  not  being  engaged  in  business  within  the 
state  ;^  it  remains  to  discuss  here,  in  a  limited  way,  the 
service  of  process  upon  a  natural  person  who  is  a  non- 
resident of  the  state.  It  may  be  premised  that  if  such 
nonresident  is  found  within  the  state,  in  the  absence  of 
fraud-  or  personal  privilege  exempting  him  from  the  ser- 
vice of  process,^ — a  subject  which  can  not  be  discussed  in 
this  place,^ — personal  service  of  process  will  give  the 
court  jurisdiction  of  the  person  of  the  defendant,  and  a 
judgment  in  personam  will  be  binding.^  But  if  such  non- 
resident can  not  be  found  within  the  state,  and  has  no 
property  within  the  state,  can  the  court  acquire  jurisdic- 
tion through  service  by  publication  or  substituted  service? 
The  question  is  one  upon  which  the  numerous  decisions 

2  Lyons  v.  Roach,  84  Cal.  27,  23  in  4  Cent.  Dig.  Cal.  2686,  §§140- 
Pac.  1026.  154;  16  Decen.  Dig.,  p.  1442,  §§  112- 

1  See,  ante,  §  172.  ^26. 

5  See    Anderson    v.    Schloesser, 

2  See,  post,  §  213;  McLain  v.  Par-  ^53  ^ai.  223,  94  Pac.  885,  holding 
ker,  88  Kan.  873.  129  Pac.  1140,  131      ^^^,  ^^^^^  ^^^  ^^^^^^  ^^^^^^ 

Par   153 

■  sonal  service  upon  a  nonresident 

3  See  Kerr's  Wharton  on  Crim-  defendant  it  was  presumed  to  have 
Inal  Procedure,  vol.  I,  §§  10-20.  been  a  personal  service  within  the 

4  See  authorities  on  this  subject      state. 
I  Code  PI.  and  Pr.— 15  225 


§180 


CODE  PLEADING  AND  PRACTICE. 


[Pt.I, 


are  not  harmonious.  Statutes  providing  for  sucli  service 
upon  nonresident  defendants  are  found  in  most  of  the 
jurisdictions.^  Such  statutes  are  valid  and  binding  within 
the  state,  according  to  many  of  the  decisions,  but  by  the 
great  preponderance  of  authority  service  of  process  in 
that  manner  and  judgment  thereon  is  without  binding 
force  or  effect  in  any  other  jurisdiction,  in  a  suit  upon  a 
judgment  rendered  on  such  service  of  process."^  Some  of 
the  cases  hold  that  the  court  can  acquire  jurisdiction  over 
a  nonresident  defendant  in  those  cases  only  in  which  such 
defendant  has  property  within  the  state  which  is  at- 
tached,^ in  which  case  the  proceedings  and  the  judgment 


6  As  to  California  provision,  see, 
post,  §§186,  193  etseq. 

7  Among  the  numerous  cases  on 
the  various  angles  of  this  question, 
see:  ALA. — Long  v.  Claris,  78  So. 
832.  ARK. — Kimball  v.  Merrick, 
20  Ark.  12;  Silver  v.  Lucke,  43  Ark. 
298.  CAL.— Anderson  v.  Goff,  72 
Cal.  65,  1  Am.  St.  Rep.  34,  13  Pac. 
73.  COLO.— Denny  v.  Ashley,  12 
Colo.  165,  20  Pac.  331.  CONN.— 
Aldrich  v.  K.inney,  4  Conn.  380,  10 
Am.  Dec.  151.  IND.— Quari  v.  Ab- 
bett,  102  Ind.  233,  52  Am.  Rep.  662, 
1  N.  E.  476;  Meyer  v.  Bucks,  2  Ind. 
App.  571,  50  Am.  St.  Rep.  251,  16 
L.  R.  A.  231,  28  N.  E.  992;  Beckett 
v.  State,  4  Ind.  App.  137,  30  N.  E. 
536.  KY.— Rogers  v.  Coleman,  3 
Ky.  (1  Hard.)  418,  3  Am.  Dec.  729. 
ME. — McVicker  v.  Bedy,  31  Me. 
314,  50  Am.  Dec.  666.  MASS.— 
Ewer  v.  Coffin,  55  Mass.  (1  Cush.) 
23,  48  Am.  Dec.  587;  National  Tele- 
phone Mfg.  Co.  V.  Du  Bois,  165 
Mass.  117,  52  Am.  St.  Rep.  503,  30 
L.  R.  A.  628,  42  N.  E.  510.  MO.— 
Chamberlain  v.  Faris,  1  Mo.  517,  44 
Am.  Dec.  304;  Abbott  v.  Sheppard, 
44  Mo.  273.  MONT. — Silver  Camp 
Min.  Co.  V.  Dickert,  31  Mont.  398, 


3  Ann.  Gas.  1000,  67  L.  R.  A.  944, 
78  Pac.  967.  N.  H.— Downer  v. 
Shaw,  22  N.  H.  277.  OHIO— Arndt 
V.  Arndt,  15  Ohio  33;  Cross  v.  Arm- 
strong, 44  Ohio  St.  613,  10  N.  E. 
160.  PA.— Scott  V.  Noble,  72  Pa. 
St.  115,  13  Am.  Rep.  663.  S.  C— 
Miller  v.  Miller,  1  Bail.  L.  242. 
TENN. — Earthman  v.  Jones,  10 
Tenn.  (2  Yerg.)  484.  TEX.— York 
V.  State,  73  Tex.  751,  11  S.  W.  869; 
Kimmarle  v.  Houston  &  T.  C.  R. 
Co.,  76  Tex.  686,  12  S.  W.  698; 
Martin  v.  Cobb,  77  Tex.  544,  14 
S.  W.  162.  VT.— Price  v.  Hickok, 
39  Vt.  292;  People's  Nat.  Bank  v. 
Hall,  76  Vt.  283,  56  Atl.  1012.  WIS. 
— Renier  v.  Hulburt,  81  Wis.  24,  29 
Am.  St.  Rep.  850,  14  L.  R.  A.  562, 
50  N.  W.  783;  Cox  v.  Northern  Wis- 
consin Lumber  Co.,  82  Wis.  145,  51 
N.  W.  1130. 

See  notes  16  L.  R.  A.  231,  50 
L.  R.  A.  578. 

8  Impounding  property  in  hands 
of  receiver,  court  may  acquire  jur- 
isdiction to  subject  the  property  to 
satisfaction  of  any  judgment  it 
may  render  on  service  of  process 
by  publication,  the  same  as  by 
attachment  of  the  property. — Mur- 


22( 


Ch.  X,]  MODE  AND  SUFFICIENCY  OF  SERVICE.  §  181 

rendered  are  in  rem  and  not  in  personam,  and  binds  only 
the  property  of  the  defendant  within  the  state  which  has 
been  attached,  and  that  other  property  of  the  defendant 
within  the  state,  which  was  not  attached,  can  not  be 
reached  on  execution  under  the  judgment. '^  And  it  has 
been  held  that  a  statute  providing  that,  in  a  personal 
action  against  a  nonresident  of  the  state  carrying  on 
business  within  the  state,  process  may  be  served  upon  an 
agent  of  the  defendant  who  is  in  charge  of  the  business 
within  the  state,  without  the  seizure  of  property,  is  un- 
constitutional.^" 

4.   Mode  of  Service  of  Process  and  Sufficiency  Thereof. 

§  181.  In  general.  The  mode  of  service  of  process 
upon  a  defendant,  different  from  the  course  of  the  com- 
mon law,  depends  upon  the  provisions  and  requirements 
of  the  statute  of  the  particular  jurisdiction  in  which  the 
service  is  made  or  attempted.  The  usual  modes  of  service 
of  process  are:  (1)  Personal  service,^  which  in  some  juris- 
dictions may  be  made  by  telegraph  f  and  (2)  constructive 
service,  which  may  be  (a)  by  substituted  service,^  or  (b) 
by  publication.*  All  of  these  methods  of  service  will  be 
discussed  in  the  sections  which  follow.  According  to  the 
course  of  the  common  law,  and  independent  of  statute, 
the  method  of  service  of  process  is  by  showing  the  original 
summons  or  process  under  the  seal  of  the  court,  and 
delivering  to  the  defendant  a  copy  thereof.^  Where  a 
service  is  attempted  to  be  made  in  a  manner  different 

ry  V.  Murray,  115  Cal.  266,  56  Am.  l  See,  post,  §§  182-186 

St.  Rep.  97,  37  L.  R.  A.  626,  47  Pac.  ^s   to    what    constitutes    a    suf- 

37;    Rhoades  v.  Rhoades,  78  Neb.  fj^jent  service  of  a  summons    see 

498,    126    Am.    St.    Rep.    611,    111  Heatherly  v.  Hadley,  2  Ore    269 

N.  W.  122.  „                   . 

o  1^             mu             T^           /^  2  See,  post,  §  1S5. 

9  Kemper-Thomas   Paper   Co.  v. 

Shyer,  108  Tenn.  444,  58   L.   R.  A.  ^  ^^®'  P^^*'  §§  187-191, 

173,  67  S.  W.  856.  -i  See,  post,  §§  193-206. 

lOCabanne    v.    Graf,    87    Minn.  5  Edmondson  v.  Mason,   16  Cal. 

5(0,  94  Am.  St.  Rep.  722,  59  L.  R.  A.  386. 

7.35,  92  N.  W.  461. 

227 


§§182,183  CODE  PLEADING  AND   PRACTICE,  [Pt.  I, 

from  tlie  course  of  the  common  law,  in  making  such  ser- 
vice and  in  the  return  thereof  the  statute  under  which  it 
is  made  or  attempted  must  be  strictly  pursued  in  order  to 
give  the  court  jurisdiction.^  To  be  duly  served'  with  a 
summons  implies  that  the  defendant  has  been  properly 
served  with  a  summons  notifying  him  to  appear  and 
answer  in  the  court  where  the  judgment  is  sought  to  be 
procured.*  Actual  service  directed  to  be  made  personally, 
without  designating  a  mode  of  service,  must  be  made  by 
citation.^ 

§  182.  Personal  service — In  general.  In  California, 
where  a  defendant  sued  resides  within  the  state,  service 
of  process  is  to  be  made  by  the  delivery  to  him,  within  the 
state,  of  a  copy  of  the  summons  and  a  copy  of  the  com- 
plaint;^ except  in  those  cases  where  (1)  he  has  departed 
from  the  state,  or  (2)  can  not,  after  due  diligence,  be 
found  within  the  state,  or  (3)  conceals  himself  to  avoid 
the  service  of  summons, — in  either  of  which  cases  it  is 
provided  that  he  may  be  served  by  publication  of  the 
summons. - 

§  183.  How  MADE — By  delivery.  Service  of  proc- 
ess by  delivery  by  the  sheriff,  or  by  other  person  ap- 
pointed to  make  the  service,  of  a  copy  of  the  summons  to 
the  defendant  personally,  is  sufficient  ;^  but  a  delivery  of 
a  copy  of  the  summons  to  an  agent  of  the  defendant  does 
not  constitute  a  valid  personal  service.-  Where  the  ser- 
vice of  process  is  made  by  delivery  of  a  copy  of  the  sum- 
mons to  the  defendant  personally  by  a  person  authorized 
by  indorsement  by  the  sheriff  or  other  proper  party,  as 

6  Jordan  v.  Giblin,  12  Cal.  100;  i  Kerr's     Cyc.     Cal.     Code     Civ. 

People  V.  De  Bernal,  43  Cal.  385.  Proc,  2d  ed.,  §  411;  Biennial  Supp. 

See,  also,  post,  §§  193-206.  1915,  p.  3058. 

T  As  to   due   service,   see,   ante,  2  Id.,   §412;    Consolidated   Supp. 

§  149.  1906-1913,  p.  1438. 

s  Smith  V.  Ellendale  Mill  Co.,  4  i  Brown  v,  Lawson,  51  Cal.  615; 

Ore.  70.  Carter  v.  Daizy,  42  Miss.  501. 

9  Spencer  v.  Houghton,   08   Cal.  2  Davidson  v.  Clark,  7  Mont.  100, 

82,  87,  8  Pac.  679.  14  Pac.  663. 

228 


til-  X.]  PERSONAL  SERVICE,   HOW   MADE.  §  183 

authorized  by  law,  the  service  will  be  sufficient,  altliouo-h 
the  copy  delivered  was  not  certified  and  did  not  contain  a 
copy  of  the  indorsement  of  authorization  to  make  the  ser- 
vice." But  the  act  of  delivery  of  the  copy  of  the  summons 
must  be  with  the  avowed  purpose  of  ser\dng  the  same; 
merely  putting  the  defendant  into  unknowTi  possession  of 
a  copy  of  the  summons  disguised  and  enveloped,  does  not 
constitute  a  valid  service  of  process  by  delivery  of  a 
copy.-'  Where  a  defendant  served  by  delivery  to  him  of  a 
copy  of  the  summons  and  a  copy  of  the  complaint  returns 
them  to  the  officer  or  person  making  the  service  without 
being  informed  that  he  is  entitled  to  keep  them,  is  an 
insufficient  service.^  In  those  cases  in  which  the  person 
sought  to  be  served  refuses  to  receive  the- copy  of  the 
summons  presented  for  service  from  the  sheriff  or  person 
appointed  to  serve  the  process,  such  officer  or  person  may 
deposit  the  copy  in  any  convenient  place  in  the  possession 
of  the  party  sought  to  be  served,  doing  so  in  his  presence, 
w^here  it  will  be  most  likely  to  come  into  his  possession, 
and  this  will  constitute  a  good  and  sufficient  personal 
service.^  But  forcibly  thrusting  it  upon  him  is  improper.' 
"Where,  however,  a  defendant  refused  to  receive  a  process, 
it  was  held  that  laying  it  on  his  shoulder  was  good  ser- 
^dce.^  If  a  copy  of  the  summons,  and  a  certified  copy  of 
the  complaint,  are  personally  delivered  to  the  defendant, 
and  issued  from  a  court  of  general  jurisdiction,  the  court 
thereby  acquired  jurisdiction  of  the  person  of  the  defen- 
dant.^ 

3  Dresser  v.  Wood,  15  Kan.  344  Wis.  374,  23  N.  W.  573;   North  v. 
(under  Civil  Code,  §  64).  Meader,  4  Sawy.  603,  Fed.  Cas.  No. 

4  Drake  v.  Duvenick,  45  Cal.  455;  10351;  affirmed,  78  U.  S.  (11  WaH.) 
Bulkley    v.    Bulkley,    6    Abb.    Pr.  ^^2-  ^^  ^-  ^^-  1^4. 

(N    Y )   307         ■  ^  Davison  v.  Baker,  24  How.  Pr. 

'      *  ,        *  (N.  Y.)  30,  39. 

5Beekman    v.    Cutler,    2    N.    Y.  „  n/,     x.         „   „     „ , 

_,     „        ^,     ^,.,            '       ^  sMartinv.  Raffin,2Misc.  (N.Y.) 

Code  Rep.  51;  Niles  v.  Vanderzee,  ^^8,  23  N.  Y.  Civ.  Proc  59   21  N  Y 

14  How.  Pr.  (N.  Y.)  547.  gupp.  1043;  Bell  v.  Vincent,  7  Dow.' 

fi  Davison  v.  Baker,  24  How.  Pr.  &  Ry.  233. 

(N.  Y.)   39;   Borden  v.  Borden,  63  o  Peck  v.  Strauss,  33  Cal.  678. 

229 


§  184  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

Mere  irregularity  in  delivery  of  the  copy  of  the  sum- 
mons to  the  defendant  served  does  not  affect  the  juris- 
diction of  the  court  over  the  person  of  such  defendant ;  it 
simply  furnishes  a  ground  for  application  by  the  defen- 
dant to  the  court  to  quash^''  the  summons.^ ^ 

<§!  184. By  READING.  In  the  absence  of  statu- 
tory provision,  personal  service  of  process  is  required  to 
be  made,  by  the  officer  or  person  serving  the  same,  by 
reading  the  summons  to  the  defendant,^  and  this  alone  is 
sufficient;-  by  service  by  leaving  a  copy  of  the  summons 
with  the  defendant  is  insufficient.^  The  reading  may  be 
by  a  special  deputy  ;^  but  the  whole  of  the  summons  must 
be  read  to  the  defendant  in  order  to  constitute  a  valid 
service,  it  not  being  sufficient  to  simply  state  to  the  defen- 
dant the  important  parts  of  the  summons.^  It  has  been 
said  that  the  reading  must  be  to  the  defendant  person- 
ally f  but,  on  the  other  hand,  it  has  been  said  that  reading 
the  summons  to  another  by  mistake,  in  the  presence  and 
hearing  of  the  defendant,  is  sufficient,  on  the  ground  that 
what  is  read  in  the  presence  and  hearing  of  several  per- 
sons is  read  to  all,  even  though  the  officer  addresses  only 
one  of  them  especially.'^  In  those  cases  in  which,  on  the 
officer  or  person  appointed  to  serve  a  process  commencing 
to  read  the  summons,  the  defendant  refuses  to  hear  its 
contents  and  walks  away,  a  return  shomng  these  facts 
has  been  said  to  constitute  a  sufficient  service.^ 

10  As  to  quashing  summons,  see,  3  Matthews  v.  Blosson,  15  Me. 
post,  §§  227  et  seq.                                    400. 

11  Peck  V.  Strauss,  33  Cal.  678.  4  Noleman  v.  Weil,  72  III.  502. 

1  Ball   V.    Shattuck,   16   111.   290;  5  Crary  v.  Barber,  1  Colo.  172. 
Law  V.  Grommes,  158  111.  492,  41  6  Hynck  v.  Englest,  11  Iowa  210. 
N.  E.  1080,  reversing  55  111.  App.  ~  Metzger  v.  Huntington,  51  111. 
312;   Matthews  v.  Blosson.  15  Me.  App.  3-77. 

400.  ^  Story  v.  Ware,  35  Miss.  399.  72 

2  Klecker  v.  Lehigh  County,  6  Am.  Dec,  125;  Staght  v.  Robbins, 
Whart.  (Pa.)  66.  13  X.  J.  L.  (1  Gr.)  340. 

230 


ell.  X.]  SERVICE  BY   TELEGRAPH.  §§  185,  186 

Statute  requiring  delivery  of  copy^  to  tlie  defendant  or 
leaving  it  at  his  residence  or  usual  place  of  abode,  service 
of  process  by  reading  the  summons  merely,  is  insuf- 
ficient;^" and  where  the  statute  pro\ddes  that  service  of 
process  shall  be  made  (1)  by  reading  to  the  defendant  a 
copy  of  the  complaint  and  a  copy  of  the  summons,  or 
(2)  by  delivery  to  the  defendant  of  a  copy  of  each,  service 
of  a  process  by  delivering  a  copy  of  the  complaint  to  the 
defendant  and  reading  to  him  a  copy  of  the  smumons,  is 
an  insufficient  service.^ ^ 

§185. By  telegraph.     The  California  code 

provides  that  any  summons  requiring  personal  ser\dce, 
may  be  telegraphed  for  service  in  any  place,  and  the 
telegraphic  copy  of  such  summons  so  transmitted  may  be 
served  by  the  officer  or  person  to  whom  it  is  sent  for  that 
purpose,  and  returned  in  the  same  manner,  and  with  the 
same  force  and  effect  in  all  respects,  as  the  original 
thereof  might  be  if  delivered  to  him,  and  the  officer  or 
person  serving  such  telegraphic  summons  has  the  same 
authority,  and  is  subject  to  the  same  liabilities,  as  if  the 
copy  were  the  original.  The  original  summons  must  be 
filed  in  the  court  from  which  it  was  issued,  and  a  certified 
copy  thereof  must  be  preserved  in  the  telegraph-office 
from  which  it  was  sent.  In  sending  such  telegraphic  copy 
the  seal  of  the  court  is  indicated  by  the  word  ''seal"  or 
the  letters ''L.  S."^ 

§  186.    Out  of  jurisdiction.    The  California  code 

provides  that  where  a  defendant,  on  w^hom  process  is  to  be 

'■»  As  to   service    by    delivery   of  (1)  by  producing  the  original  writ 

copy,  see,  ante,  §  183.  and    making   known    the   contents 

3  0  Newlove  v.  Woodward,  9  Neb.  thereof,  and  (2)  by  leaving  a  copy; 

502,  4  N.  W.  237;  Robbins  v.  Clem-  where  service  is  by  making  known 

mens,   41    Ohio   St.    285;    McCoy's  it  is  not  necessary  to  leave  a  copy. 

Heirs  v.  Crawford,  9  Tex.  353.  — Skilton   v.   Mason,    24    Leg.    Int. 

11  Waddingham  v.  St.  Louis,  City  (Pa.)  228. 

of,  14  Mo.  190.  1  Kerr's     Cyc.     Cal.     Code     Civ. 

Alternative  service  provides  for  Proc,  §  1017. 

231 


§  186  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

served,  resides  out  of  the  state,  and  that  fact  is  made  to 
appear  by  affidavit  to  the  satisfaction  of  the  court,  or  of  a 
judge  thereof;  and  it  further  appears  from  such  affidavit, 
or  from  a  verified  complaint  on  file,  that  a  cause  of  action 
exists  against  such  defendant,  or  that  he  is  a  necessary  or 
proper  party  to  the  action;  or  when  it  appears  from  such 
affidavit,  or  such  verified  complaint,  that  the  action  relates 
to  or  the  subject  of  which  is  real  or  personal  property 
within  the  state,  in  which  such  nonresident  defendant  has 
or  claims  a  lien  or  interest,  actual  or  contingent,  therein, 
or  when  the  relief  demanded  in  the  action  consists  wholly 
or  in  part  in  excluding  such  nonresident  defendant  from 
any  interest  therein,  the  court  or  judge  may  make  an 
order  directing  that  service  of  process  be  made  upon  such 
defendant  by  publication  ;^  and  that  when  publication  of 
summons  is  ordered,  the  personal  service  of  a  copy  of  the 
summons  and  a  copy  of  the  complaint  upon  such  defen- 
dant out  of  the  state  shall  be  equivalent  to  a  publication 
of  the  summons  and  deposit  of  such  publication  in  the 
post  office.^ 

In  Kansas,  an  early  case^  holds  that  in  making  personal 
ser\dce  of  the  summons  out  of  the  state  it  is  not  essential 
that  a  copy  of  the  complaint  or  petition  filed  in  the  case 
should  be  served  with  the  summons.'* 

Oklahoma  has  a  statute^  somewhat  similar  to  the  Cali- 
fornia statute,  under  which  it  has  been  held  to  be  essen- 
tial that  the  necessary  affidavit  shall  be  filed,  summons 
issued,  served,  and  due  proof  of  such  service  made.^ 

1  Kerr's  Cyc.  Cal.  Code  Civ.  folk  &  C.  Canal  Co.,  114  N.  C.  8, 
Proc,  2d  ed.,  §412;    Consolidated      19  S.  E.  106. 

Supp.  1906-1913,  p.  1438.  3  xjnder  laws  1871,  ch.  113,  §  1. 

2  Kerr's    Cyc.    Cal.     Code    Civ.  ^  ^  t,     .,    ,        01  t^       oaa 

„  ,,„  i  Case  V.  Bartholow,  21  Kan.  300. 

Proc,  §  413. 

Attachment  and  publication  void,  ^  Comp.  Laws  1909,  §  5616. 

optional  mode  of  serving  by  mail  6  State    Bank    of    Addington    v. 

will  be  invalid  also. — Millen  v.  Nor-      Lattimer  (Okla.),  149  Pac.  1099. 

232 


ell.  X.]  CONSTRUCTIVE  SERVICE.  §§  187,  188 

§  187.  Constructive  or  substituted  service — In  gen- 
eral. Constructive  or  substituted  service  of  process  is 
used  in  contradistinction  from  actual  personal  service.^ 
As  thus  used,  constructive  or  substituted  service  includes 
(1)  service  of  process  by  leaving  a  copy  of  the  summons, 
and  a  copy  of  the  complaint  where  that  also  is  required, 
(a)  at  the  residence  or  usual  place  of  abode,  or  at  the 
usual  place  of  business  of  the  defendant,  and  (b)  leaving 
a  copy  of  the  summons  with  a  person  of  suitable  age  and 
discretion  f  and  also  (2)  service  of  process  by  publication, 
whether  on  resident  or  nonresident  defendant,^  and  (3) 
service  of  process  by  mailing  copy  of  summons.^  It  has 
been  said,  however,  that  when  a  copy  of  a  summons  regu- 
larly issued  by  the  clerk  of  the  court  in  a  suit  against  a 
resident  defendant,  is  left  by  the  officer  or  person  charged- 
with  the  service  of  process  at  the  then  abode  of  such 
defendant,  this  constitutes,  not  a  constructive  service,  but 
an  actual  service  of  the  process.^  In  order  to  acquire 
jurisdiction  by  constructive  service,  the  statute  providing 
for  such  service  must  be  strictly  followed,  and  the  mailing 
of  the  published  summons  therein  prescribed  is  indis- 
pensable to  the  jurisdiction  of  the  court.*^ 

<§!  188.    1.  By  leaving  copy — Kansas.     Under  the 

Kansas  statute/  service  of  process  by  leaving  a  copy  of 
the  summons  at  the  usual  place  of  residence  of  the  defen- 
dant, is  sufficient,  being  a  personal  service  within  the 
meaning  of  the  law.-  But  in  a  case  in  which  a  man  has 
left  the  state  without  an  intention  of  ever  again  returning 
there  to  reside,  service  of  process  upon  him  by  delivering 

1  As    to    personal    service,    see,      Commissioners  v.  Challiss,  65  Kan. 
ante,  §§  182-186.  179,   69  Pac.   173. 

2  See,  post,  §§  188  et  seq.  ^  Yarbrough  v.  Pugh,  63  V^ash. 

,      ,  .        ,.  ^..     ,.  140,  33    L.   R.   A.    (N.   S.)    351,   114 

3  As   to   service    by    publication,      p       q^o 

see,  post,  §§193-206.  ,1.      \  .,„„.      ,     „„„    ., 

1  Kan.  Laws  1901,  ch.  392,  §  1. 

4  See,  post,  §  192.  2  Atchison    County   Commission- 
r>  Sturgis  v.  Fay,  16  Ind.  429,  79      ers  v.  Challiss,  65  Kan.  179,  69  Pac. 

Am.    Dec.    440;    Atchison    County      173. 

233 


§§  189,  190       CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

a  copy  of  tlie  summons  to  liis  wife,  at  his  last  place  of 
residence  within  the  state,  is  an  insufficient  service,  be- 
cause after  his  removal  from  the  state  the  defendant  has 
no  ''usual  place  of  residence"  within  the  state.*  And  the 
service  of  a  process  on  a  defendant  by  leaving  a  copy  of 
the  summons  at  a  house  in  which  he  had  household  goods 
stored,  but  at  which  neither  he  nor  his  wife  resided, 
though  his  wife  had  once  temporarily  lived  there,  is  not 
a  sufficient  service,  but  void,  under  a  statute  permitting 
service  of  process  by  leaving  a  copy  of  the  suimnons  at 
defendant's  residence,  ''residence,"  as  applying  to  ser- 
\ice  of  process,  meaning  "usual  place  of  residence."* 

§189. Oregon.     Under  the  Oregon   statute 

providing  that  service  of  process  should  be  made  by 
delivering  a  copy  of  the  summons  to  the  defendant  per- 
sonally, or  if  he  could  not  be  found,  to  some  white  person 
of  the  family,  above  the  age  of  fourteen  years,  at  the 
dwelling  house  or  place  of  abode  of  the  defendant,  a 
return  to  a  service  "by  delivering  a  copy  to  B,  a  white 
person,  over  the  age  of  fourteen  years,  at  the  dwelling 
house  of  the  defendant,"  shows  an  insufficient  service 
because  it  does  not  appear  from  such  return  that  the 
defendant  could  not  be  found  for  a  personal  service.^ 

§  190. Utah.  Under  the  Utah  laws,^  provid- 
ing that  process  may  be  served  upon  a  defendant  resident 
within  the  state  (1)  by  serving  personally  on  the  defen- 
dant a  copy  of  the  summons,  or  (2)  by  leaving  at  his  usual 
place  of  abode  a  certified  copy  of  the  summons,  with  some 

3  Amsbaugh  v.  Exchange  Bank,  519,  74  Pac.  327;  Settlemier  v. 
33  Kan.  100,  5  Pac.  384.  Sullivan,  97  U,   S.  447,  24   L.   Ed. 

4  O'Neil  V.  Eppler,  90  Kan.  314,  111;  Mickey  v.  Stratton,  5  Sawy. 
133   Pac.   705.  475,    Fed.    Cas.    No.    9530;     Swift 

1  Trullenger  v.  Todd,  5  Ore.  36;  v.  Meyers,  13  Sawy.  583,  27  Fed. 
Hass  V.  Sedlack,  9  Ore.  462,  464-6;      42. 

Hall    V.    Stevenson,    19    Ore.    157,  i  Utah  Laws  1884,  pp.  201,  202, 

20  Am.  St.  Rep.  803,  23  Pac.  889;  §268,  subd.  8;  Comp.  Laws  1907, 
McFarlane    v.    Cornelius,    43    Ore.      §  2984,  subd.  8. 

234 


cIl.  X.]  CONSTRUCTIVE   SERVICE.  §  101 

suitable  person  of  at  least  fourteen  years  of  age;-  tlie 
term  ''usual  place  of  residence,"  as  used  in  this  statute, 
means  the  place  where  the  defendant  dwells  or  lives  or 
abides  at  the  time  of  the  service,  his  then  residence,  the 
term  not  being  synonymous  with  "domicile";  hence  a 
service  of  process  made  upon  a  defendant  by  leaving  a 
copy  of  the  summons  with  his  wife,  at  a  house  erected  by 
her  after  he  had  left  the  state,  with  money  provided  by 
her  husband,  and  which  house  was  occupied  by  her  alone 
as  her  residence  and  dwelling  house  and  place  of  abode, 
her  husband  still  being  absent  from  the  state,  and  never 
having  resided  in  the  house,  is  not  a  sufficient  service 
under  the  statute  to  give  the  court  jurisdiction  of  the 
person  of  the  defendant.^ 

§191. Washington.    Under  the  Washington 

statute,^  permitting  an  alternative  service  of  process  by 
leaving  a  copy  of  the  summons  and  a  copy  of  the  com- 
plaint at  the  house  of  usual  abode  of  the  defendant,  with 
a  person  of  suitable  age  and  discretion  then  residing 
therein,  service  of  process  on  the  defendant  by  delivery 
of  a  copy  of  the  summons  and  a  copy  of  the  complaint 
to  the  defendant's  clerk,  at  his  place  of  business,  is  an 
insufficient  service.-  Service  of  process  by  delivery  of 
copies  of  the  summons  and  complaint  to  the  defendant's 
wife,  she  being  a  person  of  suitable  age  and  discretion, 
the  delivery  being  made  at  the  place  of  her  residence,  this 
will  be  a  sufficient  service,  as  it  will  be  presumed  that  the 
wife  resides  with  her  husband,  and  that  her  residence  was 
his  residence,^  because  a  married  man's  ''house  of  usual 
abode,"  for  the  purposes  of  serving  a  summons,  is  the 

2  Alternative  writ  of  proliibition      Stats.,  §  4875,  Pierce's  Code,  §§  332, 
may    be    so    served.  —  People    v.      333. 

House,  4  Utah  382,  sub  nom.  Jones  2  Hoffman   v.   Spokane   Jobbers' 

V.  House,  4  Utah  382,  10  Pac.  843.      Assoc,    54    Wash.    179,    102    Pac. 

3  Grant    v.    Lawrence,    37    Utah      1045. 

450,  Ann.  Cas.  1912C,  280,  108  Pac.  3  Powell  v.  Nolan,  27  Wash.  318, 

931.  67  Pac.  712. 

1  See  Ballinger's  Ann.  Codes   &  In  Oregon  the  return  must  show 

235 


§  192  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

house  wherein  his  wife  and  family  reside.*  Where  proc- 
ess was  served  upon  a  married  woman  by  leaving  copies 
of  the  summons  and  complaint  with  her  husband,  at  a 
point  about  thirty  feet  from  his  residence,  he  announcing 
that  the  defendant-wife  was  not  at  home,  was  held  to  be 
a  sufficient  service.^  Service  of  process  by  a  person  other 
than  the  sheriff,^  upon  a  defendant  who  was  absent  from 
the  county,  by  delivery  of  copies  of  the  summons  and 
complaint  to  the  stepmother  of  the  defendant,  and  re- 
questing that  she  deliver  the  same  to  the  defendant  on 
his  return,  was  held  to  be  a  sufficient  service,  although 
the  defendant  did  not  return  to  the  county  and  his  home 
until  after  default  judgment  had  been  taken,  and  had  no 
notice  of  the  pendency  of  the  action  until  such  return.'^ 
The  ground  upon  which  this  decision  is  based  is  the  fact 
that  the  person  serving  the  process,  while  the  agent  of  the 
plaintiff  for  the  purpose  of  making  that  service  only,  was 
without  authority  to  vary  the  written  terms  and  com- 
mands of  the  summons,  unless  such  authority  was  specif- 
ically given. * 

§  192.  2.  By  mail,  registered  or  otherwise.  Where 

the  statute^  provides  for  the  service  of  process  within 
the  state  by  mail,  persons  resorting  to  that  method  of 
service  vdW  be  held  to  a  strict  compliance  with  the  pro- 
visions of  the  statute,  and  all  abuses  ^dll  be  carefully 
guarded  against  by  the  courts.-  Where  a  process  is 
served  by  mail,  under  the  provisions  of  statute,  the  time 
of  ser\dce  begins  to  run  from  the  day  of  depositing  in  the 

that    the    husband    could    not    be  6  2    Ballinger's    Ann.    Codes    & 

found.— See,  ante,  §  189.  Stats.,  §  4874. 

^Northwestern  &  Pac.  Hy-  "  Washington  Mill  Co.  v.  Marks, 

potheek    Bank    v.     Ridpath,     29  27  Wash.  170,  67  Pac.  565. 

Wash.  687,  70  Pac.  139.  s  Id; 

5  State   ex   rel.    Pacific   Loan    &  i  As  Iowa  Code  1854,  §  2497. 

Invest.  Co.  v.   Superior  Court,   84  2  Smith   v.    Smith,   4   G.    Greene 

Wash.  392,  146  Pac.  834.  (Iowa)    266. 

236 


Ch.  X.]  SERVICE   BY   PUBLICATION,  §  193 

post  office,  not  from  the  date  of  its  receipt.^  Proceedings 
inaugurated  by  attachment  and  order  of  publication 
being  void,  service  by  the  optional  mode  of  mailing  \vi\\ 
be  invalid.^  Service  of  process  by  mail  being  provided 
for  by  the  Oregon  statute^  in  those  cases  where  the  person 
for  whom  and  on  whom  such  service  is  made  reside  in 
different  places  within  the  state,  between  which  places 
there  is  communication  by  mail,  such  a  service  of  process 
will  be  insufficient  where  deposited  in  the  mail  at  the  place 
of  residence  of  the  person  on  whom  the  service  is  made.^ 
Under  the  Washington  statute"  providing  that  the  sec- 
tions of  the  code  authorizing  the  service  of  notices  by  mail 
shall  not  apply  to  original  process,  personal  service  of  a 
summons  can  not  be  made  by  mail.^ 

Nonresident  defendant  being  beyond  the  jurisdiction 
of  the  process  of  the  court  and  of  the  laws  of  the  state, 
it  is  beyond  the  power  of  the  legislature  to  provide  that 
there  may  be  rendered  a  personal  judgment  against  a 
nonresident  defendant  upon  whom  no  personal  service 
has  been  made  within  the  state  f  hence  an  act  providing 
for  the  service  of  summons  upon  nonresident  defendants 
by  registered  mail,  does  not  confer  upon  a  court  of  the 
state  jurisdiction,  upon  the  ser\dce  of  process  in  such 
manner,  to  enter  a  personal  judgment  on  a  money 
demand. ^° 

§  193.    3.  By  publication  —  In  general.     There 

are  statutes  in  all  of  the  jurisdictions  providing  for  the 
constructive  service  of  process  by  publication  in  desig- 
nated cases,  and  in  the  manner  pointed  out  in  such  stat- 

3  Van  Home  v.  Montgomery,   5  7  As    2    Ballinger's   Ann.    Codes 
How.  Pr.   (N.  YJ   238.  &  Stats.,  §  4S93. 

4  Mullen  V.  Norfolk  &  C.  Canal  ^  Bennett   v.    Supreme    Tent    of 
Co.,  114  N   C   8,  19  S   E   106  Knights     of     Maccabees     of     the 

World,   40   Wash.   431,   2    L.   R.   A 

5  Hills  Ann.  Laws  of  Ore.,  §§  528,      (^    s  )   389    82  Pac    744 


529 


9  See,  ante,  §  180. 
237 


fiFisk  V.  Hunt,  33  Ore.  424,  54  lo  Long  v.  Clark   (Ala.),  78  So. 

Pac.  660.  832 


§  193  CODE  PLEADING  AND  PRACTICE.  [Ft.  I, 

"utes.  These  statutes,  being  in  contravention  of  the 
common  law,  must  be  strictly  pursued,^  and  their  re- 
quirements scrupulously  complied  with,-  in  order  to 
confer  jurisdiction  on  the  court  over  the  person  of  a 
defendant  residing  -within  the  state. 

Nonresident  defendant  can  be  constructively  served 
with  process  by  publication  in  those  cases  in  which  a 
judgment  is  sought  affecting  his  status,  only;  a  statute 
attempting  to  confer  upon  a  court  jurisdiction  over  the 
person  of  a  nonresident  defendant,  and  power  to  enter  a 
judgment  in  personam,  by  such  a  service  of  process  is 
unconstitutional.^  Where  the  object  of  the  action  is  to 
subject  the  property  of  the  defendant  within  the  state  to 
execution  issued  on  a  judgment  against  him,  such  prop- 
erty must  be  attached  at  the  inception  of  the  proceeding. 
After  attachment,  and  a  publication  of  summons  in  the 
manner  provided  by  statute,  the  action  becomes,  in  effect, 
a  proceeding  in  rem  against  the  property  attached,  and 
the  judgment  is  in  rem  against  such  property,  and  not  in 
personam  against  the  defendant,  and  is  valid  as  to  the 

1  CAL.— Jorda»n  v.  Giblin,  12  Cal.  1  Pac.   221.     MONT.— Alderson  v. 

100 •.  People  V.  Huber,  20  Cal.  81;  Marshall,  7  Mont.  288,  296,  16  Pac. 

Curran   v.    Shattuck,    24    Cal.    427,  576;  Palmer  v.  McMaster,  8  Mont. 

434;    Ricketson  v.  Richardson,   26  186,  192,  19  Pac.  585.    NEV.-Little 

Cal.    149.    87    Am.    Dec.    164;    Mc-  ^-  Carrie,   5   Nev.   90.  92;    Roy  v. 

0-7  r.  1    oAA    o^A  Whitford,  9  Nev.  370,  373;    Coffin 
Minn  v.  Whalen.  27  Cal.  300.  314;  '  .oo  \oa    \o    a 

„_  V.  Bell,  22  Nev.  183,  184,  58  Am. 

Early  v.  Seaman,  30  Cal.  610,  617;  ^^^     ^^^^    ^^^^    ^^^^    ^^    p^^     241. 

Forbes  v.  Hyde,  31  Cal.  342,  351,  uTAH— Park   v.    Higbee,    6    Utah 

;356;  Cohn  v.  Kemper.  47  Cal.  145;  45^4^    ^-^^^    £4    Pac.    524.      FED.— 

Tracey,   In   re,   136   Cal.   385,   390,  Galpin  v.   Page,  3  Sawy.  93.  Fed. 

69   Pac.   20;    Columbia  Screw   Co.  Cas.  No.  5205.  85  U.  S.  (18  Wall.) 

V.  Warner  Lock  Co..  138  Cal.  445.  350,   369,   21   L.    Ed.   959;    Gray  v. 

71   Pac.   498;    Livermore  v.  Ratti.  Larrimore,  2  Abb.  U.  S.  542,  550, 

150  Cal.  458,  465,  89  Pac.  327,  328;  4    Sawy.    638,    645,   Fed.    Cas.    No. 

Hancock,  Estate  of,  156  Cal.  804,  5721. 

810,    134    Am.    St.    Rep.    177..   106  2  Yarbrough  v.  Pugh,  63  Wash. 

Pac.  58;    Harris  v.  Morris,  3  Cal.  140,  33  L.  R.  A.   (N.  S.)   351,  114 

App.   154.   84   Pac.   679.     COLO.—  Pac.  918. 

Isreal  v.  Arthur,  7  Colo.  5,  1  Pac.  3  See  discussion  and  authorities, 

438;  Brown  v.  Tucker,  7  Colo.  30,  ante,  §§180,  191. 

238 


eh.  X.] 


SERVICE  BY   PUBLICATION. 


§193 


property  actually  seized,  only  ;*  it  is  a  nullity  as  to  any 
personal  claim  f  and  when  the  attachment  is  in  an  action 
sounding  in  tort  there  can  be  no  judgment.®  A  judgment 
rendered  against  a  defendant  not  personally  served  with 
process,  and  whose  property  had  not  been  attached,  would 
be  void  for  want  of  due  process  of  law."^  This  important 
doctrine  has  been  established  by  the  Supreme  Court  of 
the  United  States,''  and  it  is,  of  course,  binding  on  all  state 
courts,  not\Adthstanding  the  statutes  of  many  states,  as  in 
California,  attempting  to  authorize  a  judgment  against  a 
person  not  served  upon  a  mere  publication  of  summons.* 


4  Belcher  v.  Chambers,  53  Cal. 
635;  First  Nat.  Bank  v.  Eastman, 
144  Cal.  487,  491,  103  Am.  St.  Rep. 
95,  1  Ann.  Cas.  626,  77  Pac.  1043. 

"j  Belcher  v.  Chambers,  53  Cal. 
635,  643;  Anderson  v.  Goff,  72  Cal. 
65,  1  Am.  St.  Rep.  34,  13  Pac.  73; 
Loaiza  v.  Superior  Court,  85  Cal. 
n,  28,  20  Am.  St.  Rep.  197,  206, 
9  L.  R.  A.  376,  24  Pac.  707;  Smith 
V.  Supreme  Lodge  A.  O.  U.  W.,  12 
(';■!.  App.  190,  106  Pac.  1103. 

!■'  Mudge  V.  Steinhart,  78  Cal. 
34,  39,  12  Am.  St.  Rep.  17,  21,  20 
Pa:^.  147. 

7  As  to  "due  process  of  law," 
see,   supra,    §  157. 

s  Pennoyer  v.  Neff,  95  TJ.  S. 
714,  728,  24  L.  Ed.  565,  571-2;  Hart 
V.  Samson,  110  U.  S.  151,  28  L.  Ed. 
101,  3  Sup.  Ct.  Rep.  586;  Bigelow 
V.  Old  Dominion  Copper  Min.  & 
Smelt.  Co.,  225  U.  S.  136,  56  L.  Ed. 
1025,  Ann.  Cas.  1913E,  875,  32  Sup. 
Ct.  Rep.  641;  Riverside  &  Dan 
River  Cotton  Mills  v.  Menefee,  237 
U.  S.  193,  194,  59  L.  Ed.  912,  35 
Sup.  Ct.  Rep.  579;  New  York  Life 
Ins.  Co.  V.  Dunlevy,  241  U.  S.  521, 
60  L.  Ed.  1143,  36  Sup.  Ct.  Rep. 
613. 

9  See     authorities,     footnote     5, 


this  section;  also:  Jas.  Joseph  & 
Bros.  Co.  V.  Hoffman,  173  Ala.  573, 
Ann.  Cas.  1914A,  718,  38  L.  R.  A. 
(N.  S.)  924,  56  So.  218;  Denny  v. 
Ashley,  12  Colo.  165,  20  Pac.  331; 
Kerns  v.  McAulay,  9  Idaho  565, 
69  Pac.  540;  Smith  v.  Montoya,  3 
N.  M.  13,  1  Pac.  175;  McKinney 
V.  Collins,   88  N.  Y.  216. 

See  numerous  cases  cited  in 
Rose's  Notes  to  U.  S.  Reps.,  vol. 
9,  pp.  1102-1113. 

Provision  for  proceedings  in 
personam  contained  in  California 
Code  Civil  Procedure,  §  412,  relat- 
ing to  publication  of  summons 
against  nonresident,  does  not  ren- 
der the  section  invalid  as  to  pro- 
ceedings in  rem. — P  e  r  k  i  n  s  v. 
Wakeham,  86  Cal.  5S0,  21  Am.  St. 
Rep.   67,   25   Pac.   51. 

Foreclosure  of  mortgage  is  in 
its  nature  a  proceeding  in  rem 
against  the  mortgaged  rroperty, 
and  summons  may  be  served  on  a 
nonresident  by  publication.  —  La 
Fetra  v.  Gleason,  101  Cal.  246,  36 
Pac.    765. 

But  deficiency  judgment  against 
mortgagor  can  not  be  rendered 
when  service  of  process  by  pub- 
lication.— Rlumberg  v.  Birch,  99 
Cal.  417,  37  Am.  St.  Rep.  08. 
!39 


§  194  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

§  194. In  Califoknia — In  general.     Under 

the  California  statute  providing  for  the  service  of  process 
by  the  publication  of  summons,  this  method  of  service  of 
process  may  be  resorted  to  in  five  classes  of  cases,  as  fol- 
lows: (1)  When  the  person  upon  whom  the  service  is  to 
be  made  resides  out  of  the  state ;  or  residing  within  the 
state  (2)  has  departed  from  the  state,  or  (3)  can  not, 
after  due  diligence,  be  found  within  the  state,  or  (4)  con- 
ceals himself  to  avoid  the  service  of  summons,  or  (5)  is 
a  foreign  corporation  having  no  managing  or  business 
agent,  cashier  or  secretary,  or  other  officer  upon  whom 
service  of  process  may  be  made  who,  after  due  diligence, 
can  not  be  found  within  the  state.^  The  existence  of 
any  one  of  these  conditions  is  not  alone  sufficient;  it 
must  be  made  to  appear  by  affidavit  to  the  satisfaction  of 
the  court,  or  of  the  judge  thereof.^  In  addition  thereto, 
it  must  also  appear  by  affidavit,  or  by  the  verified  com- 
plaint on  file,  that  a  cause  of  action  exists  against  the 
defendant  in  respect  to  whom  the  service  is  to  be  made, 
or  that  he  is  a  necessary  or  proper  party  to  the  action.^ 
There  is  no  provision  that  a  judge  may  order  a  summons 
to  issue ;  his  only  power  is  to  order  a  summons,  which 
has  already  issued,  to  be  served  in  a  particular  manner.* 
No  presumption  in  favor  of  jurisdiction  acquired  by  pub- 
lication of  summons  will  be  indulged.^  The  order  must 
direct  the  publication  to  be  made  in  a  newspaper,  to  be 
designated,  as  most  likely  to  give  notice  to  the  person  to 

1  Kerr's  Cyc.  Cal.  Code  Civ.  5  McMinn  v.  Whalen,  27  Cal. 
Proc,  2d  ed.,  §412;  Consolidated  309;  Wortman  v.  Wortman,  17 
Supp.  1906-1913,  p.  1438.                        Abb.  Pr.   (N.  Y.)  66;   Fiske  v.  An- 

Section   not   invalid   because  in-  derson,    33   Barb.    (N.    Y.)    71,   12 

eluding  provisions  regarding  pro-  Abb.    Pr.    8;    Cook   v.   Farren,    34 

ceedings    purely    in    personam. —  Barb.  (N.  Y.)  95,  12  Abb.  Pr.  359, 

Perkins  v.  Wakeham,  86  Cal.  580,  21  How.  Pr.  286,  affirming  11  Abb. 

21  Am.  St.   Rep.  67,  25  Pac.  51.  Pr.    40;     Hallett    v.    Rigbters,    13 

2  §  412,  cited  footnote  1,  this  sec-  How.  Pr.  (N.  Y.)  43;  Kendall  v. 
tion.  Washburn,    14    How.    Pr.    (N.    Y.) 

3  Id.  380;   Titus  v.  Relyea,  16  How.  Pr. 

4  People  V.  Huber,  20  Cal.  81.  (N.  Y.)   371. 

210 


oil.  X.]  AFFIDAVIT    FOR   PUBLICATION.  §195 

be  served,  and  for  such  length  of  time  as  may  be  deemed 
reasonable,  at  least  once  a  week ;  but  publication  against 
a  defendant  residing  out  of  the  state  or  absent  therefrom 
must  not  be  less  than  for  two  months.  If  the  place  of  resi- 
dence of  a  nonresident  or  absent  defendant  is  known,  the 
order  must  direct  a  copy  of  the  summons  and  complaint 
to  be  forthwith  deposited  in  the  post-office,  directed  to  the 
person  to  be  served  at  his  place  of  residence.  When 
publication  is  ordered,  personal  service  of  a  copy  of  the 
summons  and  complaint  out  of  the  state  is  equivalent  to 
publication  and  deposit  in  the  post-office,  and  in  either 
case  the  service  of  the  summons  is  complete  at  the  expira- 
tion of  the  time  prescribed  by  the  order  for  publication.^ 
The  court  having  jurisdiction  of  the  subject-matter  of 
the  action,  it  has  authority  to  pass  upon  the  question 
whether  it  has  acquired  jurisdiction  over  the  person  or 
the  res  by  the  service  of  process  by  publication.'^ 

§  195. Affidavit  for  order  of  publica- 
tion— Necessity  for.  Before  an  order  for  the  service  of 
process  upon  a  defendant  by  publication  of  the  summons 
can  be  made,  it  must  appear  to  the  satisfaction  of  the 
court  or  of  the  judge  thereof,  by  affidavit,  that  one  or 
more  of  the  occasions  on  which  service  of  process  by  pub- 
lication may  be  made,  as  set  out  in  the  preceding  section, 
exists  ;^  and  in  addition  thereto  it  must  also  appear  from 

6  Kerr's  Cyc.  Cal.  Code  Civ.  Coldren,  51  Colo.  115,  117  Pac. 
Proc,  §  413.  1005;  McKnight  v.  Grant,  13  Idaho 

7  Mines  D'Or  de  Quartz  Moun-  640,  121  Am.  St.  Rep.  287,  92  Pac. 
tain  Societe  Anonyme  v.  Superior  991;  Harris  v.  Claflin,  36  Kan. 
Court,  91  Cal.  101,  27  Pac.  532.  543,  13  Pac.  830;  Grouch  v.  Martin. 

1  Kerr's    Cyc.    Cal.     Code    Civ.  47  Kan.  313,  27  Pac.  985;   Ballew 

Proc,  2d  ed.,  §412;    Consolidated  v.  Young,  24  01<la.  182,  23  L.  R.  A. 

Supp.  1906-1913,  p.  1438;    Braly  v.  (N.   S.)    1084.  103  Pac.  623. 

Seaman,    30    Cal.    610;    People    v.  As  to  what  a  sufficient  showing, 

Mullan,   65   Cal.   396,   4   Pac.   348;  see  Leavenworth,  T.   &   S.  W.   R. 

Anderson  v.  Goff,  72  Cal.  65,  1  Am.  Co.  v.  Stone,  60  Kan.  57,  55  Pac. 

St.  Rep.  34,  13  Pac.  73;   People  v.  346. 

Pearson,  76  Cal.  400,  18  Pac.  424;  Publication  of  summons  without 

Empire    Ranch    &    Cattle    Co.    v.  affidavit    authorizing    it    and     an 

I  Code  PI.  and  Pr.— IG  241 


§195 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


the  affidavit  for  publication  of  summons  or  from  a  veri- 
fied complaint  on  file,  that  a  cause  of  action  exists  against 
the  person  to  be  thus  served,  or  that  he  is  a  necessary  or 
proper  party  to  the  action.-  But  such  affidavit  for  the 
publication  of  summons  against  a  nonresident  defendant 
need  not  allege  that  an  attachment  has  been  issued  or 
levied  upon  property  of  the  defendant  within  the  state, 
or  that  the  defendant  has  any  property  within  the  state  f 


order  of  the  court,  does  not  confer 
jurisdiction  of  the  person  of  the 
defendant. — People  v.  Mullan,  65 
Cal.  396,  4  Pac.  348. 

Statement  action  one  mentioned 
in  statute  in  which  service  may  be 
made  by  publication  not  neces- 
sary; but  facts  must  be  set  out 
showing  it  to  be  such. — Harvey 
V.  Harvey,  85  Kan.  689,  118  Pac. 
1038. 

Venue  blank  in  affidavit  entitled 
in  the  cause,  held  to  be  sufficient. 
— Baker  v.  Agricultural  Land  Co., 
62  Kan.  79,  61  Pac.  412. 

2  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §  412,  Consolidated 
Supp.  1906-1913,  p.  1438;  Braly  v. 
Seaman,  30  Cal.  610;  Yolo  County 
V.  Knight,  70  Cal.  431,  11  Pac.  662; 
Little  V.  Currie,  5  Nev.  90;  Roy  v. 
Whitford,  9  Nev.  373;  Davis  v. 
Cook,  9  S.  D.  310,  324,  69  N.  W. 
18. 

Complaint  unverified,  affidavit 
for  order  for  publication  of  sum- 
mons must  state  the  facts  showing 
the  existence  of  a  cause  of  action 
against  the  defendant,  and  that  he 
is  a  necessary  or  proper  party  to 
the  action;  otherwise  the  court 
does  not  acquire  jurisdiction  of  the 
defendant  by  reason  of  the  at- 
tempted publication. — Yolo  County 


v.  Knight,  70  Cal.  431,  11  Pac.  602. 

Action  under  "McEnerney  Act" 
to  establish  title  to  land  when 
public  records  are  destroyed,  in 
the  affidavit  for  publication  of 
summons  against  unknown  defen- 
dants, it  is  not  necessary,  to  give 
jurisdiction  to  the  court,  to  state 
what  inquiry,  if  any,  plaintiff  has 
made  to  determine  whether  or  not 
there  are  any  other  persons  in 
existence  who  claim,  or  might 
claim,  any  lien  or  interest  in  the 
property  adversely  to  him;  the 
positive  statement  of  the  plaintiTf 
to  the  fact  is  sufficient,  without 
giving  the  reasons  for  the  state- 
ment, or  the  inquiry  made  to  as- 
certain the  fact  s. — Hoffman  v. 
Superior  Court,  151  Cal.  386,  390, 
90  Pac.  939. 

Jurisdiction  Is  based  on  the 
affidavit,  not  on  the  recitals  in  the 
order  of  publication. — Goodale  v. 
Coffee,  24  Ore.  346,  354,  33  Pac. 
990. 

May  be  shown  by  reference  to 
and  incorporation  of  complaint  in 
affidavit. — Ligare  v.  California  So. 
R.  Co.,  76  Cal.  610,  18  Pac.  777. 

As  to  incorporation  by  refer- 
ence, see,  post,  §  196,  footnotes  14 
and  15.    . 

3  Anderson  v.  Goff,  72  Cal.  65, 
1  Am.  St.  Rep.  34,  13  Pac.  73. 


242 


ch.  X.] 


REQUISITES    OF   AFFIDAVIT. 


§196 


the  affidavit  being  entirely  separate  and  distinct  from  the 
attachment  proceedings.* 

In  Oregon^  the  rule  is  different  from  that  prevailing  in 
California,  and  the  affidavit  for  an  order  of  publication 
of  summons  must  show  that  defendant  to  be  served  has 
property  within  the  state. ^ 


§196. 


General  requisites  of.    An 


affidavit  for  an  order  to  serve  process  by  publication  of 
summons  must  show  whether  the  residence  of  the  person 
upon  whom  service  is  sought  is  known  to  the  affiant,  and 
if  known,  the  residence  must  be  stated.^    The  facts  must 


4  Johnson  v.  Miner,  144  Cal.  785, 
787,  78  Pac.  240. 

5  Deady's  Ore.  Code,  §  55,  subd. 
3,  and  §§  56,  57. 

6  Pike  V.  Kennedy,  15  Ore.  420, 
15  Pac.  637;  Colbum  v.  Barrett, 
21  Ore.  27,  26  Pac.  1008. 

1  Ricketson  v.  Richardson,  26 
Cal.  149,  87  Am.  Dec.  164;  Braly 
V.  Seaman,  30  Cal.  610;  Mills  v. 
Smiley,  9  Idaho  317,  325,  76  Pac. 
783;  Cook  v.  Farren,  34  Barb. 
(N.  Y.)  95,  12  Abb.  Pr.  359,  21 
How.  Pr.  286,  affirming  11  Abb. 
Pr.  40;  Hyatt  v.  Wagenright,  18 
How.  Pr.  (N.  Y.)  248. 

"Address"  instead  of  "residence" 
used  in  an  affidavit  for  service  of 
process  by  publication  is  s  u  f- 
ficient;  §  52  of  Pol.  Code  not 
necessarily  applying  to  persons 
out  of  state. — San  Diego  Sav.  Bank 
V.  Goodsell,  137  Cal.  420,  70  Pac. 
299. 

Affidavit  merely  stating  last 
known  "address"  of  defendant  in 
another  state,  and  that  defendant 
still  resides  there,  judge  may  re- 
fuse to  order  publication  of  sum- 
mons because  the  affidavit  does 
not  state  the  grounds  upon  which 


affiant  relies  as  to  such  residence. 
—Bender  v.  Hutton,  160  Cal.  372, 
117  Pac.  322. 

Nonresident  at  time  complaint 
filed  need  not  be  all'^eed. — Boyle 
V.  Gordon,  39  Kan.  31,  17  Pac.  857. 

Not  directly  stated  defendant  a 
nonresident,  affidavit  held  suf- 
ficient.— Carey  v.  Reeves,  32  Kan. 
718,   5   Pac.   22. 

Place  of  residence  of  person  to 
be  served  by  publication  of  sum- 
mons is  to  be  stated  in  case  of 
absent  or  nonresident  defendant 
only,  if  known,  and  if  not  known 
that  fact  should  be  set  out. — 
Ligare  v.  California  So.  R.  Co.,  76 
Cal.  610,  18  Pac.  777.  See  Chap- 
man V.  Moore,  151  Cal.  513,  121 
Am.  St.  Rep.  130,  91  Pac.  326. 

Unequivocally  stating  that  de- 
fendant is  a  nonresident,  and  that 
"his  post  office  address"  is  a 
named  place  in  another  state  is 
sufficient.  —  Willard  v.  Willard 
(Ark.),  203  S.  W.  1019  (under 
Kirby's  Dig.,  §  6055,  as  amended 
by  Acts  1915;   p.  1084,  §4). 

in  Idaho  affidavit  for  publication 
of  summons  which  fails  to  state 
the  residence  of  the  defendants  or 
that  they  are  nonresidents,  is  in- 


213 


§196 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I, 


be  stated;  it  is  not  sufficient  merely  to  repeat  the  lan- 
guage or  substance  of  the  statute,  because  that  is  merely 
to  state  a  conclusion  of  law.-  Where  the  defendant 
resides  within  the  state,  an  affidavit  in  such  case  must 
state  facts  which  show  that  due  diligence  to  find  the  de- 
fendant has  been  used,  and  it  must  also  appear  therefrom 
that  the  diligence  has  not  been  rewarded  with  discovery.^ 


sufficient.  —  Mills     v.     Smiley,     9 
Idaho  332,  76  Pac.  788. 

Post  office  address  of  nonresi- 
dent defendant  need  not  be  given 
in  affidavit  for  publication,  under 
Oregon  L.  O.  L.,  §  56.— Moore 
Realty  Co.  v.  Carr,  61  Ore.  34, 
120   Pac.   742. 

Its  omission  is  not  jurisdictional. 
— Moore  Realty  Co.  v.  Carr,  61 
Ore.  34,  120  Pac.  742. 

—  Erroneously  given  as  charged, 
when  facts  ascertained,  affidavit 
may  be  corrected. — Id. 

2  CAL. — Ricketson  v.  Richard- 
son, 26  Cal.  149,  153,  87  Am.  Dec. 
164;  Braly  v.  Seaman,  30  Cal.  617; 
Kahn  v.  Matthai,  115  Cal.  689,  47 
Pac.  698;  Hancock,  Estate  of,  156 
Cal.  810,  811,  134  Am.  St.  Rep.  177, 
106  Pac.  61.  IDAHO— Mills  v. 
Smiley,  9  Idaho  330,  332,  76  Pac. 
787,  788.  IOWA— Little  v.  Cham- 
bers, 27  Iowa  522.  MICH. — 
Thompson  v.  Shiawassee  County 
Circuit  Judge,  54  Mich.  236,  19  N. 
W.  967.  M  O  N  T.— Alderson  v. 
Marshall,  7  Mont.  288,  296,  16 
Pac.  576;  Palmer  v.  McMaster,  13 
Mont.  184,  188,  40  Am.  St.  Rep. 
434,  436,  33  Pac.  132.  N.  Y.— Car- 
leton  v.  Carleton,  85  N.  Y.  313,  re- 
versing 23  Hun  251;  McCracken 
v.  Flanagan,  127  N.  Y.  493,  24  Am. 
St.  Rep.  481,  28  N.  E.  385.  OKLA. 
— NlcoU  V.  Midland  Sav.  &  L.  Soc, 
21  Okla.  596,  96  Pac.  746;  Harding 
V.   Gillett,   25   Okla.    190,   208,   107 


Pac.  665,  669.  UTAH— Leibhardt 
V.  Lawrence,  40  Utah  243,  120  Pac. 
215;  Phillips  v.  Lawrence,  40  Utah 
263,  120  Pac.  222;  Cohn  v.  Law- 
rence, 40  Utah  264,  120  Pac.  223. 
FED.— Romig  v.  Gillett,  187  U.  S. 
112,  47  L.  Ed.  97,  23  Sup.  Ct.  Rep. 
41;  McDonald  v.  Cooper,  32  Fed. 
745;  Cohen  v.  Portland  Lodge,  144 
Fed.  271. 

Contra:  De  Corvet  v.  Dolan,  7 
Wash.  365,  369,  35  Pac.  72,  1072, 
holding  that  an  allegation  that 
"the  defendant  resides  out  of  the 
state,"  is  the  statement  of  a  fact, 
and  is  all  that  need  be  said  uy.on 
the  subject. 

In  Montana  sufficient  to  set 
forth  sufficient  and  ultimate  facts 
recited  in  statute  as  reason  for 
publication.  —  Ervin  v.  Milne,  17 
Mont.   494,    43   Pac.    706. 

3  Braly  v.  Seaman,  30  Cal.  610; 
Forbes  v.  Hyde,  31  Cal.  342; 
Haase,  ex  parte,  5  Cal.  App.  541, 
543,  90  Pac.  947;  Isreal  v.  Arthur, 
7  Colo.  5,  12,  1  Pac.  438,  442; 
Palmer  v.  McMaster,  13  Mont.  184, 
40  Am.  St.  Rep.  434,  33  Pac.  132; 
Leibhardt  v.  Lawrence,  40  Utah 
243,  120  Pac.  215;  Phillips  v.  Law- 
rence, 40  Utah  263,  120  Pac.  222; 
Cohn  V.  Lawrence,  40  Utah  264, 
120  Pac.   223. 

See,  also,  authorities  in  last  foot- 
note. 

Affidavit  based  on  informaton 
of  others,  founded  upon  return  of 


244 


.•h.X.] 


REQUISITES   OF   AFFIDAVIT. 


§196 


Where  the  affidavit  for  publication  of  summons  presents 
some  evidence  tending  to  prove  each  jurisdictional  fact, 
but  of  a  character  clearly  too  inconclusive  to  justify  an 
order  of  publication,  the  order  is  erroneous,  and  the 
judgment  ^\dll  be  reversed  on  appeal,  but  it  is  not  void  ;^ 


sheriff  on  summons  returned  un- 
served, without  showing  any  ef- 
fort on  part  of  plaintiff,  held  to 
be  sufficient. — Rue  v.  Quinn,  137 
Cal.  651,  66  Pac.  216,  70  Pac.  732; 
Weis  V.  Cain,  7  Cal.  Unrep.  168, 
73   Pac.   980. 

Johnson  v.  Miner,  144  Cal.  785, 
78   Pac.  240. 

As  to  what  constitutes  showing 
due  diligence,  see:  People  v.  Wrin, 
143  Cal.  11.  76  Pac.  646;  People 
V.  McAllister,  143  Cal.  XVIII,  76 
Pac.  1127;  Merchants'  Nat.  Union 
V.  Buisseret,  15  Cal.  App.  44,  115 
Pac.  58;  McKnight  v.  Grant,  13 
Idaho  629,  121  Am.  St.  Rep.  287, 
92  Pac.  989;  Bank  of  Colfax  v. 
Richardson,  34  Ore.  518,  75  Am. 
St.  Rep.  664.  54  Pac.  359;  State 
V.  Superior  Court.  6  Wash.  352, 
33  Pac.  827;  De  Corvet  v.  Dolan, 
7  Wash.  365,  35  Pac.  72;  Barden 
V.  Hughes,  45  Wash.  627,  88  Pac. 
1040. 

Defendant  not  in  accustomed 
resorts;  that  made  inquiry  and 
was  unable  to  find  him;  that  eight 
summons  had  been  issued  and 
four  competent  persons  had  been 
employed  to  obtain  service;  that 
plaintiff  does  not  know  where- 
abouts of  defendant,  and  believes 
he  conceals  himself  to  avoid  sum- 
mons, being  stated,  affidavit  held 
sufficient. — Bradford  v.  McAvoy, 
99  Cal.  324,  33  Pac.  1091. 

"Due  diligence"  omitted  from  an 
affidavit  for  publication  of  sum- 
mons,   or    a    declaration    that    it 


could  not  "by  due  diligence  be 
served,"  immaterial  where  the 
facts  are  stated. — Smith  v.  United 
States  Sugar  Co.,  82  Kan.  539,  108 
Pac.  860.  See  Morris  v.  Robbins, 
83  Kan.  335,  111  Pac.  470. 

— In  Oklahoma  due  diligence  to 
find  defendant  within  state  must 
be  shown. — Harding  v.  Gillett,  25 
Okla.   190,   208,  107  Pac.   665,   669. 

Failure  to  state  service  could  be 
made  within  the  state  by  due  dili- 
gence on  person  shown  by  affidavit 
to  the  nonresident  of  state,  is  in- 
sufficient under  Oklahoma  Comp. 
Laws  1909,  §  5613.— Spaulding  v. 
Polly,  28  Okla.  764,  115  Pac.  864. 

Personal  absence  from  state 
precludes  personal  delivery  o  f 
summons. — Ennis  v.  Grimes,  SO 
Kan.  428,  102  Pac.  454. 

Residence  not  known  plaintiff 
not  bound  to  inquire  whether  de- 
fendant resident  or  nonresident, 
under  2  Ballinger's  Annotated 
Washington  Codes  and  Statutes, 
§  4877. — Warner  v.  Miner,  41 
Wash.  98,  82  Pac.  1033. 

Steps  taken  to  obtain  service 
must  be  set  out  in  Nevada. — Victor 
Mill  &  Min.  Co.  v.  Justices'  Court, 
18  Nev.  21,  1  Pac.  381. 

4  Forbes  v.  Hyde,  31  Cal.  342; 
Cohen  v.  Portland  Lodge,  144  Fed. 
269. 

As  to  statement  as  to  due  dili- 
gence in  those  cases  in  which  the 
defendant  resides  out  of  the  state, 
see,  post,  §  197,  footnote  5. 


245 


§196 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


if  there  is  a  total  want  of  evidence  upon  which  to  base  the 
order,  the  judgment  is  void.^  In  the  former  case  the 
judgment  can  not  be  attacked  collaterally,  but  on  appeal 
only.^  Facts  should  be  set  out  in  an  affidavit  for  an  order 
to  publish  a  summons,  and  not  a  general  expression  of 
opinion  or  belief  that  an  ultimate  jurisdictional  fact 
exists,  without  the  probative  facts  upon  which  such  opin- 
ion or  belief  is  founded/  An  affida\'it  to  obtain  an  order 
for  publication  of  summons  must  set  out  the  facts  consti- 
tuting a  good  cause  of  action  against  him,  or  that  show 
him  to  be  a  necessary  or  proper  party  ;^  but  an  affidavit 
which  states  that  the  deponent  ''has  a  good  cause  of 
action  in  his  suit  against  the  said  defendant,  and  that  he 
is  a  proper  party  defendant  thereto,  as  he  verily  be- 
lieves," does  not  state  any  fact  tending  to  shoAv  a  cause 
of  action,  and  an  order  and  publication  based  on  it  are 
void.''  An  afhdaxdt  for  publication  on  the  ground  of  the 
absence  of  the  defendant,  which  states  that  the  defendant 


5  Id.;  McNeil,  Estate  of,  155 
Cal.  342,  100  Pac.  1090;  Neff  v. 
Pennoyer,  3  Sawy.  284,  Fed.  Cas. 
No.  10083;  affirmed,  95  U.  S.  714, 
24  L.  Ed.  565,  overruling  Hahn  v. 
Kelly,  34  Cal.  391,  402,  404,  421,  94 
Am.  Dec.  742,  746,  748. 

*■■  Forbes  v.  Hyde,  31  Cal.  342; 
McCauley  v.  Fulton,  44  Cal.  359; 
Marten  v.  Parsons,  50  Cal.  202. 

7  Forbes  v.  Hyde,  31  Cal.  342; 
Townsley  v.  McDonald,  32  Barb. 
(N.  Y.)  604;  Collins  v.  Ryan,  32 
Karb.  (N.  Y.)  647;  Roche  v. 
Ward,  7  How.  Pr.  (N.  Y.)  416. 

8  Forbes  v.  Hyde,  31  Cal.  342, 
352;  Yolo  County  v.  Knight,  70 
Cal.  431,  434,  11  Pac.  662;  Han- 
cock, Estate  of,  156  Cal.  810,  811, 
134  Am.  St.  Rep.  177,  106  Pac,  61; 
Atkins  V.  Atkins,  9  Neb.  200;  Little 
V.  Currie,  5  Nev.  90,  92;  Roy  v. 
Whitford,  9  Nev.  373;  Neff  v.  Pen- 
noyer, 3  Sawy.  284,  Fed.  Cas.  No. 


10083;  affirmed,  95  U.  S.  714,  24 
L.  Ed.  565. 

Cause  of  action  need  not  be 
specifically  set  forth. — Calvert  v. 
Calvert,  15  Colo.  390,  24  Pac.  1043. 

Different  cause  of  action  de- 
scribed in  affidavit  from  that  set 
out  in  complaint,  affidavit  insuf- 
ficient.— Vermont  Loan  &  T.  Co. 
V.  McGregor,  5  Idaho  510,  51  Pac. 
104. 

Failure  to  state  connection  of 
defendant  with  cause  of  action 
sued  on,  affidavit  fatally  defective. 
—Beckett  v.  Cuenin,  15  Colo.  281, 
22  Am.  St.  Rep.  399,  25  Pac.  167; 
Frybarger  v.  McMillen,  15  Cal.  349, 
25  Pac.  713. 

9  Forbes  v.  Hyde,  31  Cal.  342; 
Sharp  v.  Daugney,  33  Cal.  505,  515; 
Hahn  v.  Kelly,  34  Cal.  391,  94 
Am.  Dec.  742;  the  authority  of  the 
last  case  is  weakened  by  the  fact 
that   it  was   practically   overruled 


246 


ch.  X.]  AFFIDAVIT — INCORPORATIOX    IN,    ETC.  §  11)6 

could  not,  after  due  diligence,  be  found  in  the  county 
where  the  action  was  pending;  that  affiant  had  inquired 
of  A,  who  is  an  intimate  friend  of  the  defendant,  as  to  his 
whereabouts ;  that  A  was  unable  to  inform  him ;  and  that 
plaintiff  did  not  know  where  defendant  could  be  found 
within  the  state,  was  held  insufficient.^^  It  is  not  suffi- 
cient to  state  generally,  in  such  affidavit,  that  after  due 
diligence  the  defendant  can  not  be  found  within  the  state, 
or  that  the  plaintiff  has  a  good  cause  of  action  against 
him,  or  that  he  is  a  necessary  party ;  but  the  acts  consti- 
tuting due  diligence,  or  the  facts  showing  that  he  is  a 
necessary  party,  should  be  stated.^^  It  must  be  proved 
that  the  person  to  be  served  can  not,  after  due  diligence, 
be  found  in  the  state.^^  ^here  the  attorney  of  record 
makes  an  affidavit  that  diligent  search  has  been  made  for 
the  defendant,  and  that  he  conceals  himself  to  avoid  serv- 
ice of  process,  it  is  sufficient  for  an  order  for  the  service 
of  summons  to  be  made  by  publication.^^ 

Incorporation  hy  reference  of  the  complaint  on  file  in 
the  action  is  permissible,  even  though  such  complaint  is 
unverified;^'*  but  when  the  complaint  is  unverified,  the 
affidavit  must  state  that  the  allegations  therein  are  true.^^ 

in  Neff  v.  Pennoyer,  3  Sawy.  284,  i3  Anderson    v.    Parker,    6    Cal. 

Fed.  Cas.  No.  10083;    affirmed,  95  197,   201;    Townsley  v.  McDonald, 

U.  S.  714,  24  L.  Ed.  565.  32  Barb.    (N.  Y.)    604. 

10  Swain  v.  Chase,  12  Cal.  283.  14  Ligare  v.  California  So.  R. 
See  Slocum  v.  McLaren,  106  Minn.  Co.,  76  Cal.  610,  612,  18  Pac.  777, 
391,  119  N.  W.  408.  in  effect  overrulins  McGilvery  v. 

11  Ricketson  v.  Richardson,  26  Morehead,  2  Cal.  607  (holding  af- 
Cal.  152;  Ligare  v.  California  So.  fidavit  must  itself  show  the  facts 
R.  Co.,  76  Cal.  610,  18  Pac.  777;  relied  on  by  positive  averment, 
Warren  v.  Tiffany,  9  Abb.  Pr.  (N.  and  that  It  is  not  sufTicient  to 
Y.)  66,  17  How.  Pr.  106.  refer    to    the    complaint,    or    any 

12  Hulbert  v.  Hope  Mut.  Ins.  Co.,  other  paper) ;  Yonetaro  Fkumoto, 
2  N.  Y.  Code  Rep.  148,  4  How.  120  Cal.  316,  318,  52  Pac.  72i;  (not 
Pr.  278;  affirmed,  4  How.  Pr.  415;  deciding  the  question);  Pratt  v. 
Wortman  v.  Wortman,  17  Abb.  Pr.  Stone,  25  Nev.  365,  371.  60  Pac. 
(N.    Y.)    66;    Irving    Sav.    Inst.    v.  514. 

Hardman,  17  Abb.  Pr.   (N.  Y.)   67,  ir.  See:    Howitz,  ex  parte,  2  Cal. 

note.  App.    755,    84    Pac.   230;    Peterson 

247 


§197 


CODE    PLEADING    AND    PRACTICE. 


[Pt.  I, 


§197. 


Must  state  probative   not 


ULTIMATE  FACTS.  Tlie  affida\T.t  for  an  order  of  ser\dce 
of  process  by  publication  is  the  complaint  upon  which  the 
judgment-order  for  service  is  based,  and  should  state  all 
the  probative  facts  necessary  to  justify  the  court  in  being 
satisfied  of  the  existence  of  the  ultimate  facts  required 
by  the  statute.^  But  the  cause  of  action  need  not  be  set 
forth  with  the  same  particularity  as  is  required  in  a  com- 
plaint.- The  complaint  may  be  read  with  the  affidavit, 
when  made  a  part  of  it,^  for  the  purpose  of  aiding  the 


V.  Nesbitt,  11  Cal.  App.  372,  105 
Pac.   136. 

1  Parsons  v.  Weis,  144  Cal.  410, 
77  Pac.  1007;  Colburn  v.  Barrett, 
21  Ore.  27,  26  Pac.  1008;  Goodale 
V.  Coffee,  24  Ore.  346,  33  Pac. 
900. 

Affidavit  by  plaintiff's  attorney 
insufficient  under  Colorado  Civ. 
Code,  §  41,  requiring  the  affidavit 
to  be  by  plaintiff. — Davis  v.  John 
Mouat  Lumber  Co.,  2  Colo.  App. 
381,  31  Pac.  187;  Sylph  Mine  & 
Mill.  Co.  V.  Williams,  4  Colo.  App. 
345,  36  Pac.  80;  Sayre-Newton 
Lumber  Co.  v.  Park,  4  Colo.  App. 
482,  36  Pac.  445;  Everett  v. 
Walker,  4  Colo.  App.  509,  36  Pac. 
616. 

Affidavit  as  well  as  publication 
of  summons  jurisdictional,  and 
must  comply  with  statute. — Cor- 
dray  v.  Cordray,  19  Okla.  36,  91 
Pac.  781. 

— In  Washington  affidavit  may  be 
made  by  plaintiff's  attorney,  even 
though  he  did  not  sign  the  com- 
plaint.— Swanson  v.  H  o  y  1  e,  32 
Wash.   169,  72  Pac.  1011. 

— On  information  and  belief,  on 
information  received  from  h  i  s 
client,  in  an  action  for  goods  sold 
and  delivered,  is  insufficient  on 
which   to   base   an  order   of   pub- 


lication of  summons. — Columbia 
Screw  Co.  v.  Warner  Lock  Co., 
158   Cal.  445,  71   Pac.   498. 

Affidavit  on  information  and  be- 
lief that  defendant  is  nonresident, 
showing  that  plaintiff  has  a  cause 
of  action  against  him,  and  that 
he  is  a  necessary  and  proper 
party,  is  sufficient  under  Montana 
Rev.  Code.,  §  6520.— Smith  v.  Col- 
lins, 42  Mont.  350,  Ann.  Cas. 
1912A,   1158,   112   Pac.   1070. 

— In  Oklahoma  affidavit  by  plain- 
tiff's attorney  on  information  and 
belief  that  defendant  is  a  non- 
resident is  insufficient  to  author- 
ize publication  of  summons,  and 
any  publication. — Romig  v.  Gillett, 
10  Okla.  186,  62  Pac.  805,  reversed 
on  another  point  in  187  U.  S.  Ill, 
47  L.  Ed.  97,  23  Sup.  Ct.  Rep. 
40. 

Strict  compliance  with  statute 
is  required,  and  if  one  of  the 
statements  required  by  statute  to 
be  contained  in  affidavit  is  omit- 
ted, the  affidavit  will  be  insuf- 
ficient.— Felsinger  v.  Quinn,  62 
Wash.  183,  113  Pac.  275.  See 
Lutkens  y-  Young,  63  Wash.  452, 
115   Pac.   1038. 

2  De  Covert  v.  Dolan,  7  Wash. 
365,  35  Pac.  72,   1072. 

3  As  to    incorporation    by    refer- 


248 


ell.  X.] 


AFFIDAVIT PROBATIVE   FACTS. 


§19' 


latter.^  If  the  affidavit  shows  that  the  person  on  whom 
the  service  is  to  be  made  resides  out  of  the  state  it  is  suf- 
ficient, without  showing  acts  constituting  due  diligence, 
and  any  statement  in  regard  to  diligence  in  such  affida^dt 
is  immaterial.^  Nor  is  it  necessary  to  show  by  the  affi- 
davit in  such  case  that  an  attachment  has  been  issued  or 
levied,  or  that  the  defendant  has  any  property  within  the 
state.^  But  an  affidavit  which  merely  states  that  tlie  de- 
fendant has  departed  from  the  state  and  can  not  be  found 
therein,  without  stating  that  due  or  any  diligence  has 
been  used  to  ascertain  his  whereabouts,  or  that  any  effort 
has  been  made  to  obtain  personal  service,  and  no  reason 
is  given  for  not  stating  his  residence,  is  wholly  insuffi- 
cient; the  probatory  facts  constituting  the  diligence  of 
the  plaintiff  to  find  the  defendant  should  be  stated.^ 


ence  of  complaint  in  affidavit,  see, 
ante,  §  196,  footnotes  14  and  15. 

4  See:  Bradford  v.  McAvoy,  99 
Cal.  324,  33  Pac.  1091;  Goodale 
V.  Coffee,  24  Ore.  346,  33  Pac. 
900;  McDonald  v.  Cooper,  32  Fed. 
745. 

5  Paris  V.  Raynor,  76  Cal.  647, 
18  Pac.  788;  Washburn  v.  Buchan- 
nan,  52  Kan.  417,  34  Pac.  1049; 
Ennis  v.  Grimes,  80  Kan.  429,  102 
Pac.  454;  Pike  v.  Kennedy,  15 
Ore.  420,  15  Pac.  367. 

As  to  Oklahoma  doctrine,  see, 
ante,   §  196,  footnote  3. 

As  to  statement  as  to  due  dili- 
gence when  the  defendant  resides 
within  the  state,  see,  ante,  §  196, 
footnote  4. 

Defendant  nonresident  of  state 
and  that  service  upon  him  can 
not  be  made  within  the  state,  af- 
fidavit sufficient  without  stating 
facts  that  service  can  not  be  made 
with  due  diligence. — Ballew  v. 
Young,  24  Okla.  182,  23  L.  R.  A. 
(N.  S.)   1084,  103   Pac.  623. 

Failure    to    state    result    of    in- 


quiries, but  showing  kind  of  search 
made,  of  whom  inquiry  was 
made  and  why  plaintiff  expected 
them  to  know  defendant's  where- 
abouts, affidavit  held  to  be  suf- 
ficient.— Chapman  v.  Moore,  151 
Cal.  509,  121  Am.  St.  Rep.  130,  91 
Pac.    324. 

Nonresidence  alleged  in  affi- 
davit negatives  usual  place  of 
residence  within  the  state  where 
summons  can  be  served. — Ennis 
V.  Grimes,  80  Kan.  429,  102  Pac. 
454. 

Stating  defendants  nonresidents 
of  state,  giving  name  of  state  in 
which  they  reside,  making  verified 
complaint  part  of  the  aflidavit, 
stating  defendants  to  be  served  are 
necessary  parties,  and  that  plain- 
tiff has  a  good  cause  of  action 
against  them,  affidavit  sur;ci(?nt. 
— Woodward  v.  Brown,  119  CvA. 
283,  63  Am,  St.  Rep.  108.  51  Pac.  2. 

s  See,   ante,   §  195,   footnote  3. 

T  CAL. — Ricketson  v.  Richard- 
son, 26  Cal.  149,  153,  87  Am.  Dec. 
164;  Braly  v.  Seaman,  30  Cal.  017; 


249 


§198 


CODE  PLEADING  AND  PRACTICE, 


[Ft.  1, 


Under  Colorado  practice,  the  affidavit  is  to  be  acted 
upon  exclusively  by  the  clerk  of  the  court,  and  it  is  only 
necessary  (1)  that  it  contain  sufficient  to  inform  the  clerk 
that  the  defendant  is  a  nonresident;  (2)  that  the  plaintiff 
has  a  cause  of  action,  and  (3)  that  the  defendant  is  a 
necessary  party  thereto.  It  is  not  required  by  the  statute 
that  the  clerk  judicially  ascertain,  before  granting  the 
order,  that  such  a  cause  of  action  has  been  stated  in  the 
affidavit  as  will  sustain  a  judicial  decree.^  The  affidavit 
must  be  by  a  party,  and  an  attorney  of  the  party  is  not 
competent  to  make  it.^ 


U98. 


On  infant  or  minor.    The  statu- 


tory requirements  being  positive,  that  in  actions  against 
a  minor  under  the  age  of  fourteen  years,  personal  serv- 
ice of  summons  must  be  made,^  in  cases  where  he  resides 


Hancock,  Estate  of,  156  Cal.  810, 
134  Am.  St.  Rep.  177,  106  Pac.  61. 
DAK.— Beach  v.  Beach,  6  Dak.  371, 
43  N.  W.  701.  IDAHO— Mills  v. 
Smiley,  3  Idaho  330,  332,  76  Pac. 
787.  MONT. —  Alderson  v.  Mar- 
shall, 7  Mont.  288,  16  Pac.  576; 
Palmer  v.  McMaster,  8  Mont.  186, 
19  Pac.  585;  Palmer  v.  McMaster, 
13  Mont.  184,  188,  40  Am.  St.  Rep. 
436,  33  Pac.  132.  NEV.— Little 
V.  Currie,  5  Nev.  90,  92;  Roy  v. 
Whitford,  9  Nev.  373;  Victor  Mill. 
&  Min.  Co.  V.  Justices'  Court,  18 
Nev.  24,  1  Pac.  852.  N.  Y.— Mc- 
Cracken  v.  Flanagan,  127  N.  Y. 
493,  24  Am.  St.  Rep.  481,  36  N.  E. 
10.  N.  D.— Yorke  v.  Yorke,  3  N. 
D.  343,  55  N.  W.  1095.  OKLA.— 
Nicoll  V.  Midland  Sav.  &  L.  Co.. 
21  Okla.  596,  96  Pac.  746;  Harding 
V.  Gillett,  25  Okla.  208,  107  Pac. 
669.  UTAH— Leibhardt  v.  Law- 
rence, 40  Utah  243,  120  Pac.  215; 
Phillips  V.  Lawrence,  40  Utah  263, 
120  Pac.  222;  Cohn  v.  Lawrence, 
40     Utah    264,     120     Pac.     223. 


WASH.— State  ex  rel.  Boyd  v. 
Superior  Court,  6  Wash.  352,  33 
Pac.  827.  FED.— Galpin  v.  Page, 
3  Sawy.  93,  Fed.  Cas.  No.  5206; 
Cohen  v.  Portland  Lodge,  144  Fed. 
271. 

8  Calvert  v.  Calvert,  15  Colo. 
S90,  24  Pac.  1043. 

9  Fry  barge  r  v.  McMillan,  15 
Colo.   349,  25  Pac.  713. 

Morton  v.  Morton,  16  Colo.  358, 
27  Pac.  718. 

See,  also,  authorities,  first  read- 
ing paragraph  in  footnote  1,  to 
this  section. 

1  See,  ante,  §  174.  See:  Gray 
V.  Palmer,  9  Cal.  616,  637;  Red- 
mond V.  Peterson,  102  Cal.  595, 
599,  41  Am.  St.  Rep.  206,  36  Pac. 
923;  Campbell  v.  Drais,  125  Cal. 
253,  258,  57  Pac.  994;  Filmore  v. 
Russell,  6  Colo.  171,  173;  Galpin 
V.  Page,  3  Sawy.  126,  Fed.  Cas. 
No.  520G;  Gray  v.  Larrimore,  4 
Sawy.  638,  647,  2  Abb.  U.  S.  542, 
551-2,  Fed.  Cas.  No.  5721;  Galpin 
V.   Page,  85  U.  S.  350,  21    L.   Ed. 


250 


ell.  X.]  ORDER   FOR   PUBLICATION.  §  199 

out  of  the  state,  and  his  residence  is  known  to  plaintiff, 
such  residence  should  be  stated  in  the  affidavit  for  publi- 
cation.2  But  where  the  infant  is  over  fourteen  years  of 
age  service  upon  parent,  etc.,  is  not  necessary,  for  ap- 
pointment of  a  guardian  ad  litem  may  be  made  on  appli- 
cation ore  tenus,^  and  the  court  ^\dll  presume,  unless  the 
contrary  appears,  that  minors  were  over  the  age  of  four- 
teen years,  in  wiiich  case  no  service  is  required  on  the 
mother,  or  other  person  having  them  in  charge,  in  order 
to  sustain  a  service  by  publication.^ 

'§  199. Order    for    publication — What 

TO  CONTAIN.  When  the  necessary  facts  are  made  to  suffi- 
ciently appear  to  the  court  or  to  a  judge  thereof,  that 
a  cause  exists  under  the  statute^  for  service  of  process 
by  publication,  an  order  may  be  made  and  entered  direct- 
ing the  publication  of  the  summons.-  Such  order  must 
show  the  facts  proved  by  the  affidavit  for  the  order  for 
publication,^  because  the  jurisdiction  of  the  court,  on  the 
service  of  process  by  publication,  is  based  upon  the  affi- 
davit for  order  of  publication,  and  not  upon  the  recital 
of  facts  which  are  found  in  such  order.^  It  is  not  suffi- 
cient for  the  order  to  state  generally  that  the  defendant 
resides  out  of  the  state,  or  can  not  after  due  diligence 
be  found  within  the  state,  or  that  a  cause  of  action  exists 
against  the  defendant.^  An  order  directing  service  by 
publication  made  before  the  summons  is  issued  is  a  null- 
ity.^'   The  judge  can  not  order  the  issuance  of  a  summons 

959,   reversing   1   Sawy.   309,   Fed.  i  See,    ante,    §  194. 

Cas.   No.   5205.  2  Kerr's     Cyc.     CaL     Code     Civ. 

Service     on     minor     absolutely  Proc,  2d  ed.,  §412;    Consolidated 

necessary,    and    service    on    guar-  Supp.  1906-1913,  p.  1438. 

dian    ad    litem   before   service   on  3  Ricketson    v.    Richardson,    26 

minor  is  bad.— Gray  v.  Palmer,  9  Cal.  149,  87  Am.  Dec.  164. 

Cal.  616,  637.  4  Goodale  v.  Coffee.  24  Ore.  346. 

2  Gray  v.  Palmer,  9  Cal.  616.  33   Pac.   900. 

3  Emeric    v.    Alvarado,    64    Cal.  5  Ricketson    v.    Richardson,     26 
529,  2  Pac.  418,  3  Pac.  105.  Cal.  149,  87  Am.  Dec.  164. 

4  Id.  6  People  V.  Huber,  20  Cal.  81. 

251 


§  199  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

in  the  first  instance  ;^  that  is  the  function  of  the  clerk  of 
the  court  ;^  the  power  of  a  judge  or  of  the  court  is  con- 
fined to  granting  an  order  directing  that  a  summons,  which 
has  been  already  issued,  shall  be  served  by  publication.'* 
Where  after  complaint  filed,  and  before  any  summons 
was  issued,  an  order  was  obtained  from  the  judge  that 
''summons  do  issue,"  and  that  it  be  published,  and  with- 
out any  further  order  summons  was  subsequently  issued 
and  published,  it  was  held  that  the  attempt  thus  to  acquire 
jurisdiction  of  the  defendant  was  ineffectual,  and  that  a 
judgment  rendered  against  him  by  default  without  any 
other  service  of  process,  was  void.^"  The  court  acts 
judicially  in  granting  the  order,  and  can  know  nothing 
about  the  facts  upon  which  it  is  granted,  except  from  the 
affidavit. ^^  The  question  of  the  sufficiency  of  an  affidavit 
and  order  for  publication  of  summons  may  be  raised 
by  motion  made  in  the  suit,  or  by  an  appeal  supported 
by  a  statement. ^^  An  order  for  the  publication  of  a  sum- 
mons, which  presupposes  that  the  debtor  is  a  resident 
of  the  state,  but  has  departed  therefrom,  or  keeps  him- 
self concealed  therein,  must  direct  a  copy  of  the  summons 
and  complaint  to  be  deposited  in  the  post-office,  directed 
to  the  defendant  at  his  place  of  residence,  though  it  ap- 
pear from  the  affidavit  that  he  has  departed  therefrom  ;^^ 
and  where  the  order  for  publication  of  the  summons 
does  not  direct  that  a  copy  of  the  complaint  and  smnmons 
be  forthwith  mailed  to  the  defendant,  and  which  does 
not  provide  the  length  of  time  for  publication,  is  insuffi- 
cient, and  the  court  obtains  no  jurisdiction  of  the  person 
of  the  defendant  by  publication  under  such  an  order, 
under  the  Utah  statute.^*     But  where  the  deposit  was 

7  People  V.  Huber,  20  Cal.  81.  ii  Ricketson    v.    Richardson,    26 

8  Kerr's     Cyc.     Cal.     Code     Civ.      ^^^-  1^9,  87  Am.  Dec.  164. 

Proc,  §§  406-408.  ^^  Sharp  v.  Daugney,  33  Cal.  505. 

13  Towhsley    v.     McDonald,     33 
9McMinn    v.    Whalen,    27    Cal.      ^^^^.^    ^j^    y)   604 

304;  Forbes  v.  Hyde.  31  Cal.  342.  14  p^rk  v.   Higbee,   6  Utah  414, 

10  People  V.  Huber,  20   Cal.   81.      24   Pac.   524. 

252 


ell.  X.]  CHAXGE   OF   SUMMONS   AFTER.  §§  200,  201 

made  in  the  post-office  on  the  day  the  order  was  signed, 
the  order  was  held  sufficient,  although  it  failed  to  specify- 
that  the  deposit  should  be  made  ''forthwith,"  as  pro- 
vided by  the  statute. ^^ 

§200. Change    of    summons    not 

PEEMissiBLE.  When  an  order  for  the  service  of  process 
by  publication  is  made,  the  summons  must  be  published 
in  the  form  it  was  when  the  order  for  publication  was 
made.^  Thus,  where  an  order  was  made  for  the  service 
of  summons  by  publication,  and  a  summons  was  issued, 
and  a  supplemental  complaint  was  afterwards  filed,  and 
a  summons  issued  thereon,  it  was  held  that  the  original 
action  became  merged  in  the  action  as  supplemented, 
and  the  court  did  not  acquire  jurisdiction  of  the  persons 
of  absent  defendants  by  publication  of  the  original  sum- 
mons, but  it  was  essential  to  serve  by  publication  the 
summons  issued  on  the  supplemental  complaint.-  But 
the  summons  as  published  need  be  identical  with  the 
original  in  sense  and  meaning  only;^  discrepancies  of  a 
purely  literal  character  between  the  summons  as  issued 
and  as  published  will  be  disregarded,  where  in  sense  and 
meaning  they  are  identical.^ 

§  201. Depositing   in    post-office.      In 

those  cases  in  which  the  address  or  residence  of  an  ab- 
sent or  nonresident  defendant  is  known,  the  court  or 
judge  shall  also  direct  a  copy  of  the  summons  and  com- 
plaint to  be  forthwith  deposited  in  the  post-office,  directed 
to  the  person  to  be  served  at  his  place  of  residence.^    The 

15  Anderson  v.  Goff,  72  Cal.  65,  "Forthwith,"     like     "i  m  m  e  d  i- 

1  Am.  St.  Rep.  34,  13  Pac.  73.  ately,"    is    not   necessarily    to    be 

1  McMinn  v.  Whalen,  27  Cal.  300.  construed   as  a  time  immediately 

2  Id.;    Forbes   v.   Hyde,   31   Cal.  succeeding    without    an    interval, 
342.  but  an  effectual  and  lawful  time; 

3  Sharp  V.  Daugney,  33  Cal.  505.  that    is,    is    not    to    be    construed 

4  Id.;    People  v.  Davis,   143  Cal.  strictly.— Anderson  v.  Goff,  72  Cal. 
673,  678,  77  Pac.   851.  65,  72,  1  Am.  St.  Rep.  34,  13  Pac. 

1  Kerr's     Cyc.     Cal.     Code     Civ.      73;    Lewis   v.   Curry,    156   Cal.    93, 
Proc.   §413.  101,   103   Pac.  493,  496    (two   busi- 

253 


§201 


CODE  PLEADING  AND  PRACTICE. 


[I't.  I, 


attorney  for  the  plaintiff  may  deposit  a  copy  of  the  sum- 
mons and  complaint  in  the  post-office,  and  his  affidavit- 
is  sufficient  proof  thereof  f  and  the  deposit  may  properly 
be  made  in  the  post-office  where  the  attorney  resides  and 
has  his  office,  although  the  order  for  publication  was 
made  at  a  different  place.^  A  delay  of  four  days  in  mail- 
ing, caused  by  waiting  to  have  the  papers  printed,  does 
not  render  the  service  irregular;^  but  a  fifteen  days' 
delay  would  make  it  irregular.^  Service  of  the  sunnuons 
upon  infants,  although  under  the  age  of  fourteen  years, 
should  be  made  by  depositing  a  summons  and  certified 
copy  of  the  complaint  in  the  post-office,  directed  to  the 
infant,  the  same  as  to  other  defendants^    The  failure  to 


ness  days  after,  "forthwith") ; 
Newlove  v.  Mercantile  Trust  Co., 
156  Cal.  657,  666,  105  Pac.  971,  976 
(four  days  after  order  is  "forth- 
with"). See  Bank  of  Colfax  v. 
Richardson,  34  Ore.  518,  75  Am. 
St.  Rep.  664,  54  Pac.  359  (mailing 
one  day  after  publication  is  "forth- 
with"). 

"In  each  instance  the  meaning 
depends  upon  the  circumstances 
in  the  case." — Shaw,  J.,  in  Lewis 
V.  Curry,  156  Cal.  93,  103  Pac.  493; 
approved  in  Newlove  v.  Mercan- 
tile Trust  Co.,  156  Cal.  657,  666, 
105  Pac.  971. 

In  Michigan,  publication  of  tax- 
list,  delivered  on  first  of  month,  on 
the  first  seven  days  of  the  month, 
except  the  fourth,  is  a  publication 
for  six  days  "forthwith,"  within 
the  meaning  of  the  statute. — 
Walker  v.  Detroit,  City  of,  138 
Mich.  540,  101  N.  W.  810. 

In  North  Dakota  "forthwith" 
means  v/hat. — Gunn  v.  Lauder,  10 
N.  D.  389,  393,  87  N.  W.  999. 

In  Oregon  depositing  within  a 
reasonable    time    is    sufficient.  — 


Bank  of  Colfax  v.  Richardson,  34 
Ore.  518,  538,  75  Am.  St.  Rep.  664, 
54  Pac.  359  (one  day  after  pub- 
lication). 

Order  of  publication,  with  direc- 
tion for  mailing,  issued  May  16, 
1904;  first  publication  June  25, 
1904,  and  last  day  of  publication 
August  6,  1904.  Affidavit  of  mail- 
ing made  January  4  and  filed 
January  9,  1905,  showing  the  mail- 
ing on  August  6,  1904,  showed 
that  there  had  not  been  a  com- 
pliance either  with  the  order  of 
the  court  or  the  statute. — Knapp 
V.  Wallace,  50  Ore.  348,  126  Am. 
St.  Rep.  742,  92  Pac.  1054. 

2  As  to  affidavit  of  mailing,  see, 
post,    §202. 

3  Anderson  v.  Goff,  72  Cal.  65,  1 
Am.  St.  Rep.  134,  13  Pac.  73. 

4  Mudge  V.  Steinhart,  78  Cal.  34, 
12  Am.  St.  Rep.  17,  20  Pac.  147. 

5  Van  Wyck  v.  Hardy,  11  Abb. 
Pr.   (N.  Y.)    473. 

6  Bock  V.  Crussen,  2  Abb.  Pr. 
(N.   Y.)    386. 

7  Gray  v.  Palmer,  9  Cal.  616. 


254 


•h.  X.] 


PERSONAL    SEliVlCE   OUT    OF    STATE. 


§201 


deposit  such,  when  directed  to  a  minor,  is  not  cured  by 
the  appearance  of  the  mother  in  her  o^vn  behalf,^ 

Personal  service  out  of  state,  when  order  for  service 
of  process  by  publication  has  been  obtained,  being 
effected,  it  is  unnecessary,  in  California,''  to  proceed  with 
the  publication  and  deposit  of  the  published  summons  in 
the  post-office  ;^^  but  in  New  York,  and  perhaps  elsewhere, 
such  personal  service  out  of  the  state  is  only  equivalent 
to  mailing,  and,  can  have  no  greater  effect. ^^  Whenever 
an  attempt  to  get  personal  service  out  of  the  state  by 
mailing^-  is  sought,  and  the  summons  and  complaint  are 
mailed  to  the  defendant,  and  are  taken  from  the  post- 
office  by  the  defendant's  husband,  and  delivered  to  her  in 
a  sealed  envelope,  this  does  not  constitute  personal  serv- 
ice,^^  within  the  meaning  of  the  statute  permitting  per- 
sonal service  without  the  state  as  a  substitute  for  publica- 
tion and  deposit  in  the  post-office.^^  Personal  service  out 
of  state  can  be  made  only  after  an  order  for  the  service 
of  process  by  publication  has  been  made ;  a  service  iDrior 
to  such  an  order  is  of  no  avail.^^ 


8  Id. 

9  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §413. 

10  See  Abrahams  v.  Mitchell,  8 
Abb.  Pr.    (N.  Y.)    123. 

Under  Nevada  statute  (Gen. 
Stats.,  §  3051)  providing  that  in  a 
suit  against  a  corporation  organ- 
ized under  the  laws  of  California, 
a  copy  of  the  summons  and  com- 
plaint shall  be  mailed  to  the 
president  and  trustees  of  such 
coi'poration  at  their  place  of  busi- 
ness in  California,  in  addition  to 
the  personal  service  required  by 
the  same  statute,  in  the  absence 
of  the  personal  service  so  re- 
quired, the  mailing  of  a  copy  of 
the  summons  and  complaint  to 
the   president   and    trustees    adds 


no  force  to  the  officer's  return  on 
the  summons. — Lonkey  v.  Keyes 
Silver  Min.  Co.,  21  Nev.  312,  31 
Pac.   57. 

11  Fiske  v.  Anderson,  12  Abb. 
Pr.   (N.  Y.)    8. 

12  As  to  personal  service  out  of 
jurisdiction,  see,  ante,  §  186. 

— By  mailing,  see,  ante,  §  192. 

13  As  to  how  delivery  is  to  be 
made  in  personal  service,  see, 
ante,   §  183. 

14  Rhode  Island  Hospital  Trust 
Co.  V.  Keeney,  1  N.  D.  411,  48  N. 
W.  341. 

15  McBlin  V.  McBlin,  77  Cal.  507, 
20  Pac.  61.  See  Freeman  v.  Alder- 
son,  119  U.  S.  185,  30  L.  Ed.  372,  7 
Sup.  Ct.  Rep.  165. 


25f 


§  202  code  pleading  and  practice.  [pt.  i, 

§  202. Affidavit  of  depositing  in 

MAIL.  We  have  already  seen  that  statutes  providing  for 
service  of  process  by  publication  must  be  strictly  pur- 
sued^ in  all  their  regulations  and  requirements ;  and  this 
requirement  applies  equally  to  the  act  of  depositing  in 
the  post-office  of  a  printed  copy  of  the  summons,-  the 
same  as  it  applies  to  all  the  other  requirements  to  insure 
a  valid  service ;  and  service  by  publication  is  not  complete 
until  this  is  done,^  and  the  fact  of  mailing  must  be  shown 
by  the  record.^  The  affidavit  of  deposit  of  summons  in 
post-office  need  not  state  that  the  deposit  was  made  by  a 
white  male  citizen,  or  that  the  affiant  is  such  citizen.  It 
is  sufficient  if  the  deposit  and  affidavit  are  made  by  a 
human  being  ;^  nor  is  it  necessary  to  state  that  there  is  a 
communication  by  mail  between  the  place  of  deposit  and 
the  place  to  which  the  packet  was  addressed,  nor  that 
the  post-office  was  a  United  States  post-office.^  But  an 
affida\'it  of  mailing  which  is  merely  to  the  effect  that  affi- 
ant deposited  in  the  post-office  ''a  copy  of  said  summons 
attached  to  a  copy  of  the  complaint,"  directed  to  four 
separate  defendants,  is  insufficient;  the  affidavit  must 
show  that  copies  were  deposited  in  the  post-office  for  each 
of  the  defendants,^  and  on  its  failure  to  show  this  fact, 

1  See,  ante,  §§  193,  194.  not    acquire    jurisdiction    of    the 

2  Harris  v.  Morris,  3  Cal.  App.      cause. — Noble  v,  Aune,  50  Wash. 
151,    154,    84    Pac.    678;    Knapp   v.      73,  96   Pac.   688. 

Wallace,  50  Ore.  348,  126  Am.  St.  3  Schart  v.   Schart,  116  Cal.  91, 

Rep.  742,  92   Pac.  1054;    Noble  v.  47  pac.  927. 

Aune,   50   Wash.   73,   96   Pac.   688.  ^  q.j^^^j,  ^   Lazarus,  8  Colo.  608, 

Mailing    jurisdictional.  —  Moore  9  p^^    ggl;   Harpold  v.  Doyle,  16 

Realty  Co.  v.  Carr,  61  Ore.  34,  120  ^^^^^  g^^^  ^^^  Pac.  158;   State  ex 

P^'^-  '''^^-  rel.    Boyd    v.    Superior    Court,    6 

Plaintiff  knowing  post  office  ad-      ^^^^    353^  33  p^^    337. 

dress  of  the  defendant,  but  failing  00  i-i  1    ca- 

.   ^    ,  5  Sharp  V.  Daugney,  33  Cal.  50d. 

to  send  copy  of  printed  summons, 

and  filing  affidavit  that  he  "does         ^  I<^- 

not  know  defendant's  residence,"         ^  Harris  v.  Morris,  3   Cal.  App. 

amounts  to  fraud,  and  court  does      151,  154,  84  Pao.  678,  679. 

256 


Ch,  X.]  AFFIDAVIT   OF   PUBLICATION.  §  203 

the  record  fails  to  show  that  the  service  was  complete 
on  any  of  the  defendants.^ 

§  203. Affidavit    of    publication — By 

WHOM  TO  BE  MADE.  Where  service  of  process  is  made  by 
publication  the  fact  of  publication, — the  proof  of  publica- 
tion,— is  to  be  made  by  the  affidavit  of  the  printer,  his 
foreman  or  clerk  ;^  and  the  affidavit  should  state  that  the 
person  making  the  same  holds  one  of  these  positions  ;-  and 
where  there  is  but  one  clerk  in  the  office  of  the  newspaper, 
and  the  affidavit  describes  him  as  principal  clerk,  the  affi- 
davit is  sufficient.^  But  Avhere  the  affidavit  was  made  by  a 
publisher  and  proprietor,  and  not  by  the  printer,  fore- 
man, or  chief  clerk,  it  is  sufficient,  as  being  within  the 
spirit  of  the  statute,'*  for  the  reasons  that  the  terms 
"printer"  and  "publisher"  in  the  statute  may  be  con- 
sidered as  synonymous.^  If  the  .affidavit  does  not  show 
facts  sufficient  to  give  jurisdiction,  but  the  judgment  in 
the  recitals  supplies  those  facts,  or  recites  that  ser\dce 
had  been  had  upon  the  defendant,  the  judgment  will  con- 
trol.   It  will  be  presumed  that  other  evidence  than  that 

«Id.;    citing    Schart   v.    Schart,  made   according   to   law   and   the 

116  Cal.  93,  47  Pac.  927.  order  of  the  court,  it  will  be  pre- 

1  Kerr's    Cyc.     Cal.    Code    Civ.  sumed    that   proof   of   publication 

Pioc,  §  415.  was  made  by  a  proper  person. — 

2Steinbachv.  Leese,  27Cal.  295,  ^^^^   ^-    ^^"5^-    ^4    Cal.    419,    428. 

298;    Hinkle  v.  Lovelace.  204  Mo.  ^'^  ^"''  °"-  '^^^• 

208.  223.  120  Am.  St.  Rep.  698.  11  '  ^'^^    ^-    P^^™^^'    ^    Cal.    616. 

L.   R.  A.    (N.   S.)    730.   102   S.   W.  ^^^-     ^""^   ^-    Simmons,    134   Cal. 

1019;    Odell   v.    Campbell.    9    Ore.  ^^l.   625,   66   Pac.   872;    Waters  v. 

298.    306;     Gray    v.    Larrimore.    4  Waters,    7   Misc.    (N.    Y.)    519.    27 

Sawy.  638,  646,  2  Abb.  U.  S.  542,  •^-  ^-  ^"P^-  ^*^^^- 

551,  Fed.  Cas.  No.  5721  '  ^^^^'P  ^-  Daugney.  33  Cal.  505; 

People   V.    Thomas.    101    Cal.    571. 

See.  also.  note.  42  Am.  Dec.  63.  r-r,.    oc  r,        n     »»         j        /-, 

574,  36  Pac.  9;   Menard  v.  Crowe. 

Mere  recital  of  status  of  person  20    Minn.    452;    Kipp   v.    Cook,    46 

making  proof  of   publication    suf-  Mjnn.    535.    537,    49    N.    W.    257; 

ficient— McChesney  v.  People.  174  Bunce  v.  Reed.  16  Barb.    (N.  Y.) 

111.  46.  49,  50  N.  E.  1110.  347.    Pennoyer   v.   Neff.   95   U.    S. 

Position  of  affiant  not  stated  in  714.  721.  24  L.  Ed.  565.  568. 

affidavit    of    publication,    but    the  5  Bunce  v.  Reed,  16  Barb.  (N.  Y.) 

judgment  states  that  service  was  347. 

I  Code  PI.  and  Pr.— 17  257 


§  204  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

contained  in  the  judgment-roll  was  made.  The  recital 
imports  absolute  verity.*  An  affidavit  commencing, 
**A.  B.,  principal  clerk,  etc.,  being  duly  sworn,  deposes," 
etc.,  is  held  insufficient;  he  should  swear  that  he  is  prin- 
cipal clerk  in  direct  and  positive  terms. '^ 

§  204. Publication    sufficient    when. 

In  statutes  providing  for  service  of  process  by  publica- 
tion of  summons,  the  term  ''month"  means  a  calendar 
and  not  a  lunar  month  ;^  hence  under  an  order  for  publi- 
cation of  summons  against  a  nonresident  defendant  re- 
quiring that  the  summons  be  published  once  a  week  for 
two  months,  where  the  first  publication  is  on  June  14  and 
the  last  publication  on  August  9,  the  publication  is  not 
complete  until  August  13 ;-  and  where  the  order  is  for  a 
publication  for  three  months,  against  a  nonresident  de- 
fendant, a  publication  commencing  on  the  tenth  day  of 
January,  and  ending  on  the  ninth  day  of  April,  is  a  pub- 
lication of  three  full  calendar  months,  and  the  first  day 
of  the  forty  within  which  the  defendant  is  required  to 
answer  is  the  tenth  of  April.^  If  the  last  day  of  the  pub- 
lication is  in  the  same  week  in  which  the  three  months 
expire,  the  publication  is  sufficient,  although  this  day  is 
less  than  three  months  from  the  first  day  of  publication.^ 

6Hahn  v.  Kelly,  34  Cal.  391,  94  Under  Colorado  Code  Civ.  Proc. 

Am.   Dec.  742.  1877,  §  42,  an  order  for  publication 

7  Steinbach  v.  Leese,  27  Cal.  295.  of  summons  for  four  weeks,  does 

1  Savings   &  L.   Soc.  v.  Thomp-  ^q^    ^lean    four    weeks    of    seven 

son,  33  Cal.  347;   Muse  v.  London  ^^^^  each.— Calvert  v.  Calvert,  15 

Assur.   Corp.,   108  N.   C.   240.   243,  ^^^^    gg^^   24  Pac.  1043. 
13  S.  E.  94. 

Five  consecutive  weeks,  publica- 
tion for  constitutes  a  publication 

for    one   month. -Fo  r  s  m  a  n    v.  3  Savings  &   L.   Soc.  v.  Thomp- 

Bright,  8  Idaho  471,  69  Pac.  474;  son,  33  Cal.  347;  Reclamation  Dis- 

Harpold    V.    Doyle,    16    Idaho    683,  trict  v.  McPhee,  13  Cal.  App.  382, 

688,  102  Pac.  160,  162.  385.   109    Pac.    1106. 

Three  weeks'  publication  means  ■*  Savings   &  L.   Soc.  v.   Thomp- 

twenty-one  days. — Silva  v.  Lopez,  son,  33  Cal.  347. 
5  Hawaii  270. 

258 


2  Foster  v.  Vehmeyer,   133   Cal. 
459,   65  Pac.  974. 


eh.  X.]  PUBLICATION   CONCLUSIVE.  §  205 

If  some  of  the  publications  of  a  summons,  including  the 
last,  are  made  on  Sunday,  in  the  regular  issue  of  the 
paper,  this  does  not  vitiate  the  service.^  A  judgment  ren- 
dered against  a  party  who  is  absent  fi'om  the  state  upon 
publication  of  the  summons  thirty  days  only  is  void.''  A 
publication  for  seventy  days  is  held  to  be  a  publication 
for  ten  weeks. "^  A  publication  for  thirty-nine  days  is 
held  a  publication  for  six  weeks. ^  The  month  contem- 
plated by  the  statute  is  a  calendar  month,  and  not  a  lunar 
month.^  Under  a  statute  requiring  publication  of  sum- 
mons to  be  made  not  less  than  once  a  week  for  six  con- 
secutive weeks,  six  publications  are  sufficient,  where  it 
is  made  once  in  each  of  six  consecutive  weeks. ^^ 

§205. Publication    conclusive    when. 

We  have  already  seen^  that  the  provisions  of  the  statute 
prescribing  the  mode  of  acquiring  jurisdiction  of  the 
person  of  the  defendant  by  publication  of  the  summons 
must  be  strictly  pursued.^  It  is  necessary-  that  every 
material  requirement  of  the  statute  concerning  service  of 
summons  by  publication  be  carefully  and  strictly  pur- 
sued in  order  to  give  the  court  jurisdiction.^  If  the  Code 
of  Civil  Procedure  intended  a  judgment  rendered  against 

5  Id.;   Smith  v.  Hazard,  110  Cal.  i  See,  ante,  §§  193,  194,  202. 
145,  149,  42  Pac.  465.                                  2  Jordan  v.  Giblin,  12  Cal.  100; 

Contra:    Malmgren   v.    Phinney,  Cohn  v.  Kember,  47  Cal.  144,  145; 

50  Minn.  457,  463,  118  L.  R.  A.  753,  Tracey.  In  re,  136  Cal.  385,  390.  69 

5     N.     W.     918;     McLaughlin     v,  Pac.  20;    Harris  v.  Morris,  3  Cal. 

Wheeler,  2  S.  D.  379,  383,  50  N.  W.  App.  154,  84  Pac.  679;    Palmer  v. 

834.  McMaster,    8    Mont.    186,    193,    19 

6  Jordan  V.  Giblin,  12  Cal.  100.  Pac.    585;    Kendall    v.    Washburn, 

7  People  ex  rel.  Demarest  v.  14  How.  Pr.  (X.  Y.)  380;  Roose- 
Gray,  10  Abb.  Pr.  (N.  Y.)  468,  19  velt  v.  Land  &  River  Imp.  Co.,  108 
How.   Pr.   238.  Wis.  653,  658,  84  N.  W.  157. 

8  Olcott  V.  Robinson,  21  N.  Y.  ?,  O'Rear  v.  Lazarus,  8  Colo.  60S, 
150,  78  Am.  Dec.  126.  9  Pac.  621;   Beckett  v.  Cuenin.  15 

sSprague  v.  Norway,  31  Cal.  Colo.  281,  25  Pac.  167;  Davis  v. 
173;  Savings  &  L.  Soc.  v.  Thomp-  John  Mouat  Lumber  Co.,  2  Colo, 
son,  32  Cal.  350.  App.  381,  31  Pac.  187;   Roberts  v. 

10  State  ex  rel.  Boyd  v.  Superior  Roberts,  3  Colo.  App.  6,  31  Pac. 
Court,  6  Wash,  352,  33  Pac.  827.  941. 

259 


§  205  CODE  PLEADING  AND  PRACTICE.  [t*t.  I, 

a  defendant  served  by  publication  to  be  final  under  all 
circumstances,  the  constitutionality  of  such  service  might 
admit  of  very  grave  doubt,*  but  the  legislature  manifestly 
did  not  so  intend.^  The  affidavit  is  only  prima  facie  evi- 
dence of  the  facts,  and  if  untrue,  the  defendant  can  at 
any  time  have  the  judgment  set  aside.^  If  the  defendant 
in  fact  conceals  himself  to  avoid  the  ser\dce  of  process, 
he  will  not  be  heard  to  complain  that  he  was  not  person- 
ally served.'^  If  jurisdiction  of  the  person  of  a  defendant 
is  to  be  acquired  by  publication  of  the  summons  in  lieu 
of  personal  service,  the  statutory  mode  must  be  strictly 
pursued ;  and  if  it  appear  that  the  court  never  had  juris- 
diction of  the  person  of  the  defendant  by  reason  of  non- 
compliance with  the  provisions  of  the  statute,  the  judg- 
ment entered  in  the  case  against  such  defendant  will  be 
pronounced  a  nullity,  whether  it  come  directly  or  collat- 
erally^ in  question.^  But  a  judgment  rendered  against  a 
nonresident  of  the  state  who  has  not  been  personally 
served  within  the  state,  nor  submitted  himself  to  the 
jurisdiction  of  the  court,  can  only  be  enforced  within  the 
state  in  which  the  judgment  is  rendered,  and  no  personal 

4  See,  ante,  §  193,  footnote  3.  service  by  publication,  can  not  be 

5  Ware  v.  Robinson,  9  Cal.  111.  looked  into. — McCauley  v.  Fulton, 

6  Id.  44  Cal.  355,  361;    Newman,  In  re, 

7  Id.;  Swain  v.  Cbase,  12  Cal.  75  Cal.  213,  220,  7  Am.  St.  Rep.  150, 
285;    Ricketson  v.  Richardson,   26  16  Pac.  887. 

Cal.  154,  87  Am.   Dec.  164;    Barly  See,  also,  note  94  Am.  Dec.  765. 

V.  Seaman,  30  Cal.  617.  9  McMinn  v.  Whelan,  27  Cal.  300, 

8  On  collateral  attack  recitals  in  312;  Forbes  v.  Hyde,  31  Cal.  342, 
judgment  as  to  jurisdiction  of  per-  347-355;  McCauley  v.  Fulton,  44 
son  of  defendant  conclusive.— Mc-  Cal.  355,  359;  Martin  v.  Parsons, 
Cauley  v.  Fulton,  44  Cal.  355,  631;  50  Cal.  498,  502;  People  v.  Wrin, 
Drake  v.  Duveneck,  45  Cal.  455,  143  Cal.  11,  13,  76  Pac.  646,  but 
462;  Anderson  v.  Goff,  72  Cal.  65,  holding  judgment  not  void  on  face, 
74,  1  Am.  St.  Rep.  34,  41,  13  Pac.  except  where  affidavit  too  defec- 
73;  Newman,  In  re,  75  Cal.  213,  tive  to  confer  jurisdiction;  Neff  v. 
220,  7  Am.  St.  Rep.  150,  16  Pac.  Pennoyer,  3  Sawy.  274,  284,  Fed. 
887;    Epping  v.  Robinson,   21   Fla.  Cas.  No.  10083. 

49.  Compare:  Hahn  v.  Kelly,  34  Cal. 

— Affidavit   and    orders   showing      402,  404,  421,  94  Am.  Dec.  746. 

2C0 


ell.  X.] 


TIME  WHEN  TO  Al'l'EAR  AXD  PLEAD. 


§206 


liability  will  result  therefrom  wLicli  will  be  recognized 
beyond  the  state  in  wdiich  the  action  originated. ^'^ 


§206. 


Time   within   v/hich   to   appear 


AFTER  PUBLICATION.  The  California  Code  of  Civil  Pro- 
cedure provides  that  where  service  of  process  is  made  by 
publication  **the  service  of  the  summons  is  complete  at 
the  expiration  of  the  time  prescribed  by  the  order  for 
publication."^  The  publication  affects  the  summons,  only, 
and  whether  the  summons  be  published  the  full  time  and 
a  copy  mailed,  or  personal  service  is  had  out  of  the  juris- 
diction^ after  the  order  of  publication  is  made,  as  per- 
mitted by  statute,  the  defendant  will  have  thirty  days"^  in 


10  Belcher  v.  Chambers,  53  Cal. 
635;  Loaiza  v.  Superior  Court,  85 
Cal.  11,  28,  20  Am.  St.  Rep.  206, 
24  Pac.  707;  Anderson  v.  Goff,  72 
Cal.  65,  1  Am.  St.  Rep.  34,  13  Pac. 
73;  Blumberg  v.  Birch,  99  Cal.  416, 
417,  37  Am.  St.  Rep.  68,  34  Pac. 
102;  Brown  v.  Campbell,  100  Cal. 
635,  35  Am.  St.  Rep.  314,  35  Pac. 
433;  De  la  Montanya  v.  De  la  Mon- 
tanya,  112  Cal.  101,  53  Am.  St.  Rep. 
165,  33  L.  R.  A.  82,  44  Pac.  345; 
Eureka  Mercantile  Co.  v.  Califor- 
nia Ins.  Co.,  130  Cal.  153,  62  Pac. 
393;  First  Nat.  Bank  v.  Eastman, 
144  Cal.  487,  105  Am.  St.  Rep.  95, 
1  Ann.  Cas.  626,  77  Pac.  1043; 
Johnson  v.  Miner,  144  Cal.  785,  78 
Pac.  240;  Jameson  v.  SimondsSaw 
Co.,  2  Cal.  App.  582,  84  Pac.  289; 
Smith  V.  Supreme  Lodge  A.  O. 
U.  W.,  12  Cal.  App.  189,  190,  106 
Pac.  1103;  Weil  v.  Lowenthal,  10 
Iowa  578;  Folger  v.  Columbian 
Ins.  Co.,  99  Mass.  267,  96  Am.  Dec 
747;  Smith  v.  Montoya,  3  N.  M 
13,  1  Pac.  175;  McKinney  v.  Col 
lins,  88  N.  Y.  216;  Holmes  v 
Holmes,  4  Lans.  (N.  Y.)  388,  re 
versing  57  Barb.  305,  8  Abb.  Pr 
N.  S.  1;  Reber  v,  Wright,  68  Pa 


St.  471;  Harris  v.  Hardeman,  55 
U.  S.  (14  How.)  334,  340,  14  L.  Ed. 
444,  446-7;  Pennoyer  v.  Neff,  95 
U.  S.  714,  728,  24  L.  Ed.  565,  570-1; 
Hart  V.  Samson,  110  U.  S.  151,  28 
L.  Ed.  101,  3  Sup.  Ct.  Rep.  586; 
Davis  V.  Walkelee,  156  U.  S.  680, 
689,  39  L,  Ed.  578,  784-5,  15  Sup. 
Ct.  Rep.  555;  Wilson  v.  Graham, 
4  Wash.  C.  C.  53,  Fed.  Cas.  No. 
14804. 

See  note  16  L.  R.  A.  234,  and 
numerous  cases  cited,  9  Roses 
Notes  to  U.  S.  Reps.,  pp.  1100-1113. 

1  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  413. 

2  Id. 

As  to  personal  service  out  of 
jurisdiction,  see,  ante,  §  186. 

3  Under  Practice  Act,  defendant 
had  forty  days  within  which  to 
answer. — Grewell  v.  Henderson,  5 
Cal.  465. 

Forty  days  in  which  to  answer 
allowed  in  an  early  Colorado 
case  because,  under  the  code 
provision,  the  publication  not  com- 
pleted until  the  expiration  of  ten 
days  after  the  time  prescribed  for 
publication  (Conley  v.  Morris,  6 
Colo.  212),  and  an  early  Idaho  case 


261 


§207 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I, 


which  to  answer.^  After  the  expiration  of  the  time  desig- 
nated in  the  order  for  which  the  publication  was  to  bo 
made,  plea  is  due ;  a  default  judgment  taken  before  the  ex- 
piration of  that  time  will  be  improper  because  premature/^ 
But  a  publication  of  the  summons  beyond  the  time  re- 
quired by  the  order,  and  as  fixed  by  law,  does  not  extend 
the  time  within  which  the  defendant  is  required  to  appear 
and  answer.^ 

5.  Time  and  Place  of  Service  of  Summons. 
§  207.  Time  of  service — In  general.  The  object  of  a 
summons  is  to  give  the  defendant  notice  of  the  pendency 
of  the  action  and  to  bring  him  into  court, ^ — or  at  least  to 
give  the  court  jurisdiction  of  his  person  on  his  failure  to 
appear  and  plead.  The  time  of  service,  with  relation 
to  the  return-day  of  the  summons,  should  be  sufficient  to 
enable  the  defendant  to  procure  counsel  and  prepare  his 
plea  or  answer.-  This  matter  is  generally  regulated  by 
statute,  and  when  so  regulated  that  regulation  must  be 


holds  that  where  a  defendant  out 
of  the  state  is  served  by  publica- 
tion, he  has  one  month  and  forty 
days  in  which  to  answer. — Bowen 
V.  Harper,  6  Idaho  654,  657,  59  Pac. 
179. 

— Fifty  days  must  elapse  after 
the  last  publication  required  by 
law  before  the  defendant  can  prop- 
erly be  considered  in  default. — 
O'Rear  v.  Lazarus,  8  Colo.  60S,  9 
Pac.  621. 

In  Nevada  defendant  has  twenty 
days  after  completion  of  service  in 
which  to  answer.  —  Forsyth  v. 
Chambers,  30  Nev.  340,  96  Pac.  931. 

4  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §407;  Consolidated 
Supp.  1906-1913,  p.  1438. 

5  Foster  v.  Vehmeyer,  133  Cal. 
459,  65  Pac.  974;  Conley  v.  Morris, 
6  Colo.  212;  Sidles  v.  Baker,  6 
Colo.  295;  Brown  v.  Tucker,  7 
Colo.    30,    1    Pac.    221;    0"Rear    v. 


Lazarus,  8  Colo.  608,  9  Pac.  621; 
Morton  v.  Morton,  16  Colo.  358,  27 
Pac.  718;  Seeley  v.  Taylor,  17  Colo. 
70,  28  Pac.  461;  Forsyth  v.  Cham- 
bers, 30  Nev.  337,  96  Pac.  930. 

See,  also,  footnote  3,  this  sec- 
tion. 

6  Anderson  v.  Goff,  72  Cal.  65,  1 
Am.  St.  Rep.  34,  13  Pac.  73. 

1  Smith  v.  Curtis,  7  Cal.  584. 

2  Nichols  v.  Fanning,  20  Misc. 
(N.  Y.)  73,  45  N.  Y.  Supp.  409. 

Service  after  the  return-day 
named  in  the  summons,  or  fixed  by 
law  is  a  nullity,  and  the  court  ac- 
quires no  jurisdiction  over  the  per- 
son of  the  defendant. — Lofland  v. 
Jefferson,  4  Harr.  (Del.)  303;  Peck 
V.  La  Roche,  86  Ga.  314,  12  S.  E. 
638;  Hitchcock  v.  Haight,  7  111. 
603;  Draper  v.  Draper,  59  111.  119; 
Noel  v.  Bank  of  Kentucky.  23  Ky. 
(7  T.  B.  Mon.)  400;  Matthews  v. 
Warne,  11  N.  J.  L.  (6  Halst.)  295; 


2G2 


ch.  X.] 


TIME   OF   SERVICE. 


§207 


strictly  complied  witli.^  Tlius,  where  the  statute'*  pro- 
vides for  service  at  any  time  before  the  return-day  named 
in  the  summons, — the  same  will  be  true  where  the  return- 
day  is  fixed  by  statute  from  the  date  of  issue  of  summons, 
and  the  like, — service  on  the  return-day  will  be  invalid  f 
but  when  the  summons  is  required  by  statute  to  be  served 
a  designated  number  of  days  before  the  return-day,  ser- 


State  V.  Kennedy,  18  N.  J.  L.  (3 
Har.)  22;  Butler  v.  Corbitt,  2 
Strobh.  L.  (S.  C.)  1;  Harrington 
V.  Harrington  (Tex.  App.),  16  S.  W. 
538;  Cobb  v.  Brown,  3  Wilson  Civ, 
Cas.  Ct.  App.,  §314;  Blodgett  v. 
Battleboro,  Town  of,  28  Vt.  695; 
Crews  V.  Garland,  2  Munf.  (Va.) 
491. 

3  French  v.  Regan,  58  111.  App. 
261;  Broghill  v.  Lash,  3  G.  Greene 
(Iowa)  357;  Josey  v.  Dixon,  12 
Rich.  L.  (S.  C.)  378;  Virginia  Fire 
&  Marine  Ins.  Co.  v.  Vaughan,  88 
Va.  832,  14  S.  E.  754;  Raub  v. 
Otterback,  89  Va.  645,  16  S.  E.  933. 

In  New  York,  under  statute  re- 
quiring service  to  be  made  within 
sixty  days  after  filing  a  lis  pen- 
dens, a  failure  to  serve  within 
sixty  days,  and  service  after  that 
time,  affects  merely  the  lis  pen- 
dens, not  the  jurisdiction  of  the 
court. — Brandon  v.  Vroman,  22 
Misc.  (N.  Y.)  370,  50  N.  Y.  Supp. 
323,  but  judgment  in  case  reversed 
on  another  point,  29  App.  Div. 
(N.  Y.)  597,  51  N.  Y.  Supp.  943. 

In  Ohio,  under  statute  requiring 
service  to  be  made  before  return- 
day,  a  service  on  the  return-day 
was  held  voidable,  but  not  void. — 
Meisse  v.  McCoy's  Adm'r,  17  Ohio 
St.  225. 

Under  practice  in  the  Dakotas, 
unless  the  summons  in  an  action 
is  served  in  the  manner  prescribed 
by  law  within  thirty  days  after  the 


issue  of  a  warrant  of  attachment, 
the  writ  becomes  void,  and  will  be 
set  aside  on  motion. — Rhode  Island 
Hospital  Trust  Co.  v.  Keeney,  1 
N.  D.  411,  48  N.  ^N.  341;  McLaugh- 
lin V.  Wheeler,  2  S.  D.  379,  50 
N.  W.  834. 

The  practice  in  the  Dakotas  is 
founded  upon  the  New  York  Code 
of  Civil  Procedure,  and  the  same  is 
held  under  that  code.— See  Blos- 
som V.  Estes,  84  N.  Y.  614,  affirm- 
ing 22  Hun  472,  59  How.  Pr.  381; 
Gribbon  v.  Free!,  93  N.  Y.  93,  2 
N.  Y.  Civ.  Proc.  Rep.  (McCarty) 
482,  62  How.  Pr.  273. 

Under  West  Virginia  statute  pro- 
viding that  summons  must  be 
served  within  ninety  days  from  its 
date,  and  that  the  time  within 
which  any  act  shall  be  done  shall 
be  ascertained  by  excluding  the 
first  day  and  including  the  last 
day,  does  not  render  invalid  the 
service  of  a  summons  on  the  day 
on  which  it  is  issued  and  dated.— 
Spragins  v.  West  Virginia,  C.  &  P. 
R.  Co.,  35  W.  Va.  139,  13  S.  E.  45. 

4  As  Kansas  Civ.  Code,  §  64. 

5  Button  V.  Ilobson,  7  Kan.  190. 

In  Michigan  where  there  is  a  de- 
fendant residing  within  the  state 
and  one  residing  out  of  the  state, 
service  on  the  nonresident  on  the 
return-day  will  be  valid  where  the 
resident  defendant  was  served 
earlier. — Munn  v.  Haynes,  46  Mich. 
140,  9  N.  W.  136. 


263 


§§208,209 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


vice  on  the  last  of  sucli  days  is  sufficient.^  In  the  absence 
of  statutory  provision,  service  on  the  return-day  is  good.'^ 
Service  of  summons  before  the  complaint  is  filed,  where 
an  action  is  commenced  by  filing  a  complaint,  is  a  nullity.^ 


§208. 


In  California.     In  California  a  summons 


is  required  to  be  issued  within  one  year,^  and  to  be  served 
within  three  years,-  from  the  date  on  which  the  action  is 
commenced  by  filing  the  complaint;^  the  service  can  not 
be  made  three  years  from  the  one  year  in  which  the  sum- 
mons shall  issue.*  In  making  proof  of  service  of  process 
served  otherwise  than  by  publication,  the  certificates  of 
the  sheriff,  or  affidavit  of  the  party  making  the  service, 
must  state  the  time  of  service.^ 


§209. 


On  Sunday.     We  have  already  seen 


that  when  service  of  process  is  made  by  publication  of 
the  summons,  the  fact  that  some  of  the  publications  are 
made  on  Sunday  in  the  regular  issue  of  the  paper  ;^  but 
can  the  sheriff,  or  a  person  appointed  to  serve  the  process 


6  Adams  v.  Cummiskey,  58  Mass. 
(4  Cush.)  420;  Butler  v.  Fessen- 
den,  66  Mass.  (12  Cush.)  78; 
Bemis  v.  Leonard,  118  Mass.  502, 
19  Am.  Rep.  470. 

In  Michigan,  under  such  a  stat- 
ute, it  has  been  held  that  both  the 
day  of  service  and  the  return-day 
must  be  excluded.— Snell  v.  Scott, 
2  Mich.  N.  P.  108. 

In  Rhode  Island  the  return-day 
is  included. — Mathewson  v.  Ham, 
21  R.  I.  203,  42  Atl.  871. 

7  Aumock  V.  Jamison,  1  Neb. 
423;  Matthews  v.  Warne,  11  N.  J, 
L.  (6  Halst.)  295;  Cashee  v.  Wis- 
ner,  2  Browne  (Pa.)  245;  Heber- 
ton  V.  Stockton,  2  Miles  (Pa.)  164; 
Boyd  V.  Serrell,  2  Clark  (Pa.)  327, 
4  Pa.  L.  J.  114. 

8  Texas  State  Fair  &  Dallas  Ex- 
position V.  Lyon,  5  Tex.  Civ.  App. 
382,  24  S  W.  328. 


As  to  service  of  copy  of  com- 
plaint in  lieu  of  summons,  before 
filing  of  complaint,  see,  post,  §  211. 

In  Oregon,  service  of  complaint 
and  notice  upon  a  defendant  be- 
fore the  same  are  filed  in  the  of- 
fice of  the  clerk  of  the  court  is  a 
good  service. — Keith  v.  Quinney,  1 
Ore.  364. 

1  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  406. 

2  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §  581a;  Consolidated 
Supp.  1906-19J3,  p.  1525. 

3  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  405. 

■i  Bernard  v.  Parmelee,  6  Cal. 
App.  537,  545,  92  Pac  658. 

5  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  415. 

1  See,  ante,  §  204,  footnote  5. 


264 


ell.  X.]  PLACE  OF   SERVICE — CALIFORNIA   DOCTRINE.  §  210 

do  SO  by  delivering  a  copy  of  the  summons  and  a  copy 
of  the  complaint  to  the  defendant  on  Sunday?  It  has 
been  held  in  California  that  a  writ  placed  in  the  hands 
of  the  sheriff  on  Sunday  can  not  be  officially  received  by 
him  on  that  day ;  that  it  can  be  considered  as  officially  in 
his  hands  when  Sunday  has  expired.-  By  the  common 
law  all  judicial  proceedings  which  take  place  on  Sunday 
are  void.^  But  is  the  service  of  process  initiating  juris- 
diction over  a  defendant  ^'judicial  business"  in  Califor- 
nia under  the  decisions?^  In  any  jurisdiction  in  which 
there  are  statutes  forbidding  the  doing  of  secular  Avork^- 
on  Sunday,  service  of  process  on  Sunday  will  be  invalid ; 
but  in  California,  where  the  Rabbinical  Sabbath,  or  any 
similar  day,  is  not  recognized  by  the  law  as  dies  sacra,'- 
and  Sunday  is  regarded  merely  as  any  other  holiday,' 
service  of  process  personally  by  delivering  to  the  defen- 
dant on  Sunday  a  copy  of  the  summons  and  a  copy  of  the 
complaint  will  doubtless  be  held  to  be  a  valid  service. 

§  210.  Place  of  service — California  doctrine.  In 
California  the  process  of  the  courts  runs  to  all  parts  of 
the  state,  and  personal  service  may  be  made  anywhere 
within  the  state.  Where  service  of  process  is  ordered 
to  be  made  by  publication,  personal  service  may  be  made 
out  of  the  state,^  and  this  personal  ser\^ce  takes  the  place 
of  the  publication  ordered.-  In  all  cases  of  service  of 
process  otherwise  than  by  publication,  the  certificate  of 
the  sheriff,  or  the  affidavit  of  any  other  person  appointed 
to  make  the  service,  must  state  the  place  of  service.^  The 

2  Whitney  v.  Butterfield,  13  Cal.  seq.,  44  Pac.  1074  (holding  service 
335,  73  Am.  Dec.  584.  on  Sunday  of  statement  on  appeal 

3  Hauswirth  v.  Sullivan,  6  Mont.  not  "judicial  business"  within  art. 
203,  206,  9  Pac.  798.  VI,   §5,  Const.  1879).     See  Husen 

Last  day  falling  on  Sunday  on  v.   Smith,   138  Cal.  216,  218-19,   94 

which  process  may  be  served,  ser-  Am,  St.  Rep.  39,  71  Pac.  180. 

vice  the  following  Monday  is  good.  i  See,  ante,  §  186. 

—Turner  v.  Thompson,  23  Ga.  49.  2  Kerr's     Cyc.     Cal.     Code     Civ. 

•»  See  Reclamation  Dist.  No.  535  Proc,  §  413. 

V.  Hamilton,  112   Cal.  603,   610  et  ;;  Id.,  §  415. 

265 


§  211  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

object  of  requiring  a  designation  of  the  place  where 
service  of  the  process  is  made,  is  to  determine  the  period 
within  which  the  answer  must  be  filed,  or  when  default 
may  be  taken.^  Where  the  evidence  of  place  of  service 
is  insufficient,  advantage  of  it  should  be  taken,  either  by 
appeal  or  on  motion  to  vacate  the  judgment.^  But  where 
the  return  shows  that  two  defendants  were  served  in  the 
same  county,  and  does  not  state  that  they  resided  in  the 
county  where  served,  the  return  will  be  sufficient,  because 
it  Avill  be  presumed,  nothing  appearing  to  the  contrary, 
that  the  defendants  resided  in  the  county  where  the  ser- 
vice was  made  f  and  where  the  return  shows  a  service  of 
the  process  on  two  or  more  of  the  defendants  in  one 
county,  and  the  delivery  of  a  copy  of  the  complaint  to 
one  of  them,  the  return  will  not  be  defective  because  it 
does  not  state  that  all  the  defendants  so  served  were 
residents  of  that  countyJ 

6.  Serving  Copy  of  Complaint  Instead  of  Process: 
Copies  With  Process. 

§  211.  Serving  complaint  instead  of  process.  In  those 
jurisdictions  in  which  an  action  is  commenced  by  the 
filing  of  a  complaint,  under  a  provision  permitting  the 
ser\ice  of  a  copy  of  the  complaint  instead  of  and  in  lieu 
of  a  summons,  the  service  of  such  copy  of  the  complaint 
on  the  day  before  the  original  is  filed  is  invalid;^  but 
ser\dce  of  such  copy  on  the  same  day  on  which  the  original 
is  filed  is  good,  notwithstanding  the  fact  that  the  service 
is  made  before  the  actual  filing  takes  place.^ 

4  Alderson  v.  Bell,  9  Cal.  315.  7  Pellier  v.  Gillespie,  67  Cal.  582. 

5  Pico    V.     Sunol,    6     Cal.    294;       583,  8  Pac.  185. 

Drake  v.  Duvenick,  45  Cal.-  464.  i  Ellis  v.  Fletcher,  40  Mich.  321; 

6  Calderwood  v.  Brooks,  28  Cal.  South  Bend  Chilled  Plow  Works  v. 
151,  153;  King  v.  Blood,  41  Cal.  Manahan,  62  Mich.  143,  28  N.  W. 
317;    Pellier   v.    Gillespie,    2    Cal.  768. 

Unrep.  407,  4  Pac.  1137;  Mantle  v.  2  Heylus    v.    Patton,    12    Wend, 

Casey,  31  Mont  411,  78  Pac.  592.       (N.  Y.)  324. 

2GG 


«  II.  X.]  SERVIXG    COPY    OF    COMPLAINT.  §  212 

hi  Oregon,  in  an  early  case  under  the  Act  of  Decem- 
ber 10,  1856,^  which  act  abolished  the  writ  of  process  and 
provided  for  a  form  of  notice  to  the  defendant,  to  he 
signed  by  the  plaintiff  or  his  attorney  and  attached  to 
the  complaint,  it  was  held  that  the  senice  of  the  com- 
plaint and  notice  upon  a  defendant,  before  the  same  was 
filed  in  the  office  of  the  clerk  of  the  court,  was  a  good 
service.* 

§  212.  Serving  copy  of  complaint  with  summons.  The 
California  code  requires  that  a  copy  of  the  complaint 
must  be  served  with  a  copy  of  the  summons  upon  each  of 
the  defendants  in  the  action.^  Service  of  a  copy  of  the 
summons  and  a  copy  of  the  complaint,  or  a  certified  copy 
of  the  complaint,-  as  the  statute  may  require,  anywhere 
within  the  state,  personally  upon  the  defendant,  gives  the 
court  jurisdiction  of  the  person  of  such  defendant.^  A 
mere  irregularity  in  the  mode  of  delivering  tlie  copy  of 
the  complaint,  or  of  the  copy  of  the  summons,  does  not 
render  the  ser^dce  of  process  void ;  it  is  merely  ground 
for  applying  to  the  court  to  set  aside  the  summons.* 

In  Montana  the  service  of  a  true  but  uncertified  copy 
of  the  complaint  with  the  copy  of  the  summons,  has  been 
held  to  be  a  sufficient  ser\dce  to  give  the  court  jurisdiction 
to  try  and  determine  the  cause;  such  service  being  ac- 
cording to  the  general  understanding  and  usage.^ 

In  Oregon,  if  no  copy  of  the  complaint  is  served  upon 
the  defendant,  as  required  by  the  statute,  any  doubt  as 
to  the  validity  and  sufficiency  of  the  service  will  be  re- 
solved against  its   sufficiency.^     Copy  of  complaint  in 

3  Sesa.  Laws  1856,  p.  18,  §  3.  4  See,  ante,  §  183. 

4  Keith  V.  Quinney,  1   Ore.  364.  5  Dunschen  v.  Higgins,  2  Mont. 
1  Kerr's     Cyc.     Cal.     Code     Civ,      302. 

Proc,  §  410.  Conflict  of  sections  of  a  proced- 

:i  Certified  copy  of  complaint  no  ural  code,  the  subsequent  section 

longer    required    to   be    served    in  sliould  have  the  greatest  weight. — 

Califoraia.— Id.;    Cowell    v.    Stew-  Dunschen  v.  Higgins,  2  Mont.  302. 

art,  69  Cal.  525,  526,  11  Pac.  57.  «  Heatherly    v.    Hadley,    2    Ore. 

3  Peck  V.  Strauss,  33  Cal.  678.  269. 

267 


§  213  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

equity  served  upon  one  of  the  defendants,  only,  and  it 
not  appearing  from  tiie  return  that  the  plaintiff  directed 
in  writing  upon  which  of  the  defendants  service  of  the 
copy  of  the  complaint  was  to  be  made,  if  such  service  is 
defective  it  can  be  taken  advantage  of  on  appeal  only ;  it 
does  not  render  the  decree  void  under  the  statute/ 

7.  Service  Procured  by  Fraud. 

%  213.  In  general.  It  is  a  general  principle  of  law 
that  fraud  vitiates  all  into  which  it  enters,  and  courts  are 
required  to  protect  litigants  from  fraud  and  covinous 
practices.  Fraud  on  the  part  of  one  of  the  parties  in 
interest,  by  means  of  which  service  of  process  is  secured 
on  a  defendant,  is  void.  Thus,  the  use  of  criminal  process 
to  bring  defendant  into  the  jurisdiction  for  the  purpose 
of  securing  service  of  process  in  a  civil  suit,  wdll  render 
the  ser\dce  void.^  Forcing  defendant  to  come  into  the  state 
for  purpose  of  securing  service  of  process,  is  fraudulent, 
and  the  ser^dce  is  void.-  Inducing  party  residing  in 
another  state,  by  fraud  and  false  representations  on  the 
part  of  one  in  interest,  to  come  into  the  state  foi-  purpose 
of  serving  process,  jurisdiction  is  obtained  by  fraud,  and 
any  judgment  the  court  may  render  mil  be  void  f  but  a 
request  to  come  into  the  state  for  the  purpose  of  defend- 
ing an  attachment  suit  pending,  and  serving  the  person 
with  process  while  there,  is  not  fraudulent  and  the  service 
good.^  Plaintiff's  agent  inducing  defendant  to  come  into 
the  state  to  consult  over  the  controversy,  and  while  there 

As  to  what  service  sufficient  of  within  the  jurisdiction  for  the  pur- 
notice  and  complaint,  to  give  court  pose  of  serving  him  with  process 
jurisdiction,  see  Garland  v.  Hein-  in  a  civil  action,  is  fraudulent  and 
borg,  2  Ore.  75.  the  service  void. — McNab  v.  Ben- 

7  Ankeny  v.   Blackiston,    7    Ore.  nett,  66  111.  157. 
407.  2  Ziporkes     v.     Chmelniker,     15 

1  McNab  V.  Bennett,  66  111.  157;  N.  Y.  St.  Rep.  215. 
Byler  v.  Jones,   79   Mo.   261 ;    Ad-  3  Toof  v.   Foley,   87   Iowa  8,   54 

dicks  V.  Bush,  1  Phlla.  (Pa.)  19.  N.  W.  59. 

Arresting  defendant  under  fraud-  4  Duringer  v.  Moschino,   93   Ind. 

ulent   pretense   and   carrying  him  495. 

268 


ch.  X.] 


SERVICE   PROCURED   BY   FRAUD. 


§21; 


serving  him  with  summons,  the  service  is  void;"'  in 
Kansas,  however,  it  is  held  not  to  be  void  unless  the 
plaintiff  did  some  act  to  effect  defendant's  coming;*'  but  it 
must  be  remembered  that  in  Kansas  the  procuring  the 
defendant  to  come  into  the  jurisdiction,  for  the  purpose 
of  having  summons  served  upon  him,  is  regarded  as  a 
legitimate  act  of  diligence."^ 

Fraud,  trick  or  device  in  procuring  the  service  of  proc- 
ess upon  one  who  is  already  voluntarily  and  legitimately 
within  the  jurisdiction,  does  not  render  the  service  of  the 
process  invalid.^ 


5  Miami  Powder  Co.  v.  Greswold, 
5  Ohio  Dec.  532. 

6  McLaln  V.  Parker,  88  Kan.  717, 
129  Pac.  1140;  affirmed  on  rehear- 
ing, 88  Kan.  873,  131  Pac.  153. 

Representations  by  attorney  of 
plaintiff  that  action  would  not 
be  brought  in  Kansas  City,  and 
through  which  representation  the 
trip  was   induced,   was  given  no 


consideration,    being   regarded    as 
unimportant. — Id. 

7  Carney  v.  Taylor,  4  Kan.   178. 
See,  however,  post,   §  227,   foot- 
note 9. 

8  Atlantic  &  P.  Tel.  Co.  v.  Balti- 
more &  O.  R.  Co.,  46  N.  Y.  Super. 
Ct  Rep.  (14  Jones  &  S.)  377;  af- 
firmed, 87  N.  Y.  355. 


269 


CHAPTER  XL 

PROCEEDINGS  TO  OBTAIN  JUBISDICTION DEFECTS  AND 

OBJECTIONS. 

§  214.  In  general. 

§  215.  Defects  not  prejudicing  defendant. 

§  216.  Defects  to  which  defendant  may  object. 

§  217. In  the  process. 

§  218. In  the  service  of  process  or  proof  of  service — 

Personal  service. 

§  219. Service  by  publication. 

§  220.  Persons  who  may  object. 

§  221.  Necessity  for  objection. 

§  222.  Mode  of  objecting  and  sufficiency  thereof — ^In  general. 

§  223.  By  plea. 

§  224.  By  motion. 

§  225.  Time  when  objection  to  be  taken, 

§  226.  Quashing  or  setting  aside  process  or  service  thereof — In 

general. 

§  227.  The  process. 

§  228.  The  service  of  summons — Personal  service. 

§  229. Service  by  publication. 

§  230.  Amendment  of  defects — In  process. 

§  231.  To  return  of  service  of  process — In  general. 

§  232. Limitation  on  rule. 

§  233. Character  and  scope  of  amendment. 

§  234. Jurisdiction    can'  not    be    conferred    by 

amendment. 

§  235. Time  within  which  amendment  may  be  made. 

§  236. Wlio  may  amend. 

§  237. Method  of  amendment. 

§  238. On  notice. 

§  239.  Waiver  of  defects  and  objections. 

§  240.  Cure  by  subsequent  proceedings — ^Defects  which  may  be 

cured. 

§  241.  Defects  which  are  not  cured. 

270 


eh.  XI.]  DEFECTS  AND  OBJECTIONS.  §  214 

§  214.  In  general.  A  process  may  be  good,  although 
the  return,  for  some  reason,  is  irregular ;  and  the  return 
may  be  regular  in  all  respects  and  perfect  in  its  recitals, 
and  the  process  may  be  void.^  Where  the  place  of  holding 
the  court  at  which  the  ajjpearance  is  to  be  made  is  left 
blank,  it  has  been  held  that  the  defect  can  not  be  cured  by 
appearance  or  otherwise ;-  and  where  there  is  no  seal  to 
the  process,  this  will  be  cause  for  reversal.^  The  process 
not  issued  in  strict  conformity  to  law,  the  defect  appear- 
ing upon  the  face  of  the  process  or  by  extrinsic  facts,  it 
is  irregular,  whether  void  or  voidable  only  ;^  but  the  cause 
A\dll  not  necessarily  be  dismissed  because  of  this  defect. "^ 
Error  in  the  notice  as  to  the  relief  demanded,*'  can  not  be 
disregarded  under  provisions  of  code  respecting  errors 
in  pleading;'^  although  it  has  been  held  to  be  different  in 
those  cases  in  which  the  summons  refers  to  the  complaint, 
and  a  copy  of  the  complaint  is  delivered  with  a  copy  of 
the  sunamons.^  Service  of  a  process  which  is  irregular, 
has  been  said  not  to  be  void  when  personally  served;^ 
0.  g.,  where  the  date  named  for  appearance  is  less  than 
the  number  of  days  allowed  by  law  and  required  to  be 
stated  in  the  summons,^**  or  where  the  writ  of  process  is 
not  endorsed  by  some  resident  freeholder,  as  required  by 
law,  when  to  be  served  out  of  the  county. ^^ 

1  Braham  V.  Stewart  Bros.  &  Co.,  6  As  to  notice  of  relief  de- 
109  La.  999,  34  So.  54.  manded,  see,  ante,  §  137. 

2  Wrogg  V.  Branch  Bank,  8  Port.  '  Diblee  v.  Mason,  1  N.  Y.  Code 
(Ala.)  195.  Rep.  37,  2  Edm.  Sel.  Cal.  20. 

3  Rudd  V.  Thompson,  22  Ark.  8  Chamberlain  v.  Bittersohn,  48 
363.  Fed.  42. 

4  Cooper  V.  Harter,  2  Ind.  252.  9  Kimball  v.  Taylor,  2  Woods  37, 
Date  blank  and  clerk's  signature      Fed.  Cas.  No.  7775. 

omitted,  process  held  to  be  void-  As  to  personal  service,  see,  ante, 

able,  but  not  void,  in  Ambler  v.  §§  182-186. 

Leach,  15  W.  Va.  677.  lo  Court  will  direct  defendant  be 

5  Rittenour    v.    McCausland,     5  allowed  the  time  provided  by  law. 
Blackf.   (Ind.)    540;   Gruler  v.  Mc-  — Guion  v.  Melvin,  69  N.  C.  242. 
Roberts,   48   Mich.   316,   12  N.  W.  n  Security  is  for  sheriff,  and  it 
201;  Higley  V.  Pollock,  21  Nev.  198,  is   in  his   discretion   to   serve   the 
27  Pac.  895.  process  without  the  indorsement. 

271 


§  215  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

Service  of  a  void  process  is  equivalent  to  no  ser\ice  at 
all  ;^2  and  where  there  is  no  service/^  or  no  legal  service/ "♦ 
no  jurisdiction  is  conferred  upon  the  court.  But  a  defec- 
tive service  may  sometimes  confer  jurisdiction.^^ 

§  215.    Defects  not  prejudicing  defendant.    It  is 

not  all  defects  and  irregularities,  either  in  the  process  or 
in  the  service  or  in  the  return  thereof,  that  prejudices  the 
defendant;  and  where  in  nowise  prejudiced  in  his  rights 
or  the  defense  he  might  make,  a  defendant  will  not  usually 
he  heard  to  ohject  because  of  such  defects  or  irregulari- 
ties. Thus,  a  slight  discrepancy  between  the  original 
process  and  the  copy  of  the  summons  served,  either  per- 
sonally or  by  publication,  which  is  not  capable  of  mis- 
leading the  defendant  either  as  to  the  nature  of  the  pro- 
ceeding, the  property  affected,  or  the  relief  demanded, 
does  not  affect  the  validity  of  the  service  of  the  process, 
and  the  defendant  will  not  be  heard  to  object.^  Any 
defect  in  an  original  and  unexecuted  process  is  not  avail- 
able to  a  defendant  served  under  an  alias  summons  which 
is  free  from  the  infirmity  f  and  the  fact  that  an  affidavit 
filed  to  secure  an  order  for  the  publication  of  summons 
was  insufficient,  is  not  available  to  the  defendant  subse- 
quently served  within  the  state  under  an  alias  summons."' 
An  irregularity  in  the  return,  consisting  in  a  '' clerical 
error ' '  or  '^  slip  of  the  pen ' '  in  adding  an  extra  letter  to 
the  name  of  the  defendant  served,  does  not  affect  the 
regularity  of  the  summons,  and  the  defendant  will  not 
be  heard  to  object,  because  thereof,  after  default  judg- 

— Johnson  v.  Rolph,  Tapp.  (Ohio)  is  Vickery  v.  Omaha,  K.  C.  &  E. 

165.  R.  Co.,  93  Mo.  App.  1. 

12  Hinman  v.  Westheimer,  110  i  People  v.  Davis,  143  Cal.  673, 
Mo.  App.  191,  85  S.  W.  101.  77  Pac.  651. 

13  Vickery  v.  Omaha,  K.  C.  &  E.  2  Goodlett  v.  Hansell,  56  Ala. 
R.  Co.,  93  Mo.  App.  1.  346. 

14  Medical  College  v.  Rushing,  3  McKibbin  v.  McKibbin,  139 
124  Ga.  239,  52  S.  E.  33.  Cal.  448,  73  Pac.  143. 

272 


C'h.  XI.]  DEFECTS IN  PROCESS.  §§  216,  217 

ment  is  taken.''  No  substantial  right  of  the  defendant 
being  affected  by  any  defect  or  irregularity,  either  in  the 
original  process  or  the  service  or  the  return  of  service 
thereof,  defendant  will  not  be  heard  to  object  under  a 
statute  providing  that  the  court  shall  disregard  all  errors 
and  defects  in  the  pleadings  or  in  the  proceedings  which 
do  not  affect  any  substantial  rights  of  the  parties.^ 

§  216.   Defects  to  which  defendant  may  object. 

Defects  and  irregularities  relative  to  the  process,  to  which 
objection  may  be  taken  by  the  defendant,  and  for  whicli 
the  court  will  grant  relief,  maybe  either  (1)  in  the  process 
itself  or  (2)  in  the  service  thereof  or  in  the  return  of 
service;  and  the  defect  may  be  (1)  mere  errors  or  irregu- 
larities or  (2)  jurisdictional  defects.^  If  the  defects  are 
jurisdictional,  the  court  acquires  no  jurisdiction  over  the 
person  of  the  defendant  by  the  service,  or  attempted 
service,  of  the  process,  and, — in  the  absence  of  appear- 
ance^  and  waiver  of  the  defects, — any  judgment  that  may 
be  rendered  by  the  court  will  be  a  nullity ;  but  an  appear- 
ance^ and  pleading  to  the  merits  will  constitute  a  waiver* 
of  all  defects  in  the  process,  whether  (1)  mere  errors  and 
irregularities  or  (2)  jurisdictional  defects,  because  the 
sole  object  of  the  process  and  the  service  thereof  is  to 
bring  the  defendant  into  court  and  procure  jurisdiction  to 
determine  the  cause,  and  when  the  defendant  is  once  in 
court  and  pleads  to  the  merits,  it  is  immaterial  how  he 
got  there.^ 

'^  217. In  the  process.    Amongst  the  defects 

to  which  a  defendant  can  take  objection,  are  substantial 

4  Alexander  v.  McDow,  108  Cal.  footnote   2   and   text  going   there- 
25,  41  Pac.  24.  with. 

5  Higley  v.  Pollock,  21  Nev.  198,  3  As  to  appearance  and  the  ef- 
27  Pac.  895.  feet  of,  see,  post,  §§  255  et  seq. 

1  As    to    jurisdictional    defects,  4  As  to   waiver  of  defects,   see, 
Bee,  ante,  §  38.  post,  §  239. 

2  Defect  that  can   not  be   cured  5  Smith    v.    Curtis,    7    Cal.    584; 
by    appearance,    see,    ante,    §  214,  Hayes  v.  Shattuck,  21  Cal.  51. 

I  Code  PI.  and  Pr.— 18  273 


§  218  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

defects,  errors  or  irregularities  in  the  process  itself ;  but 
if  those  defects,  errors  or  irregularities  are  as  to  or 
consist  in  notice  of  or  direction  to  do  things  not  author- 
ized and  which  should  not  be  done  it  will  not  affect  the 
validity  of  a  process  otherwise  sufficient,  no  injury  or 
injustice  having  been  done  the  defendant.    For  it  is  true, 
as  Mr.  Justice  Brewer  stated  it,  that,  generally  speaking, 
neither  the  process  of  the  court,  nor  the  action  taken 
under  it,  will  be  held  to  be  void  when  the  thing  which 
should  be  done  is  commanded  to  be  done,  and  that  thing 
only  was  done,  even  though  the  process  irregularly  com- 
manded other  things  to  be  done  which  should  not  have 
been  done,  and  which  were  not  done.^    Where  the  copy 
of  the  summons  served,  and  the  original  thereof,  gave  the 
wrong  notice  to  the  defendant  as  to  the  relief  demanded 
in  the  complaint,  but  on  default  the  plaintiff  applied  to 
the  coui't  for  the  relief  to  which  he  was  entitled  under  the 
statute,  and  in  the  manner  provided  by  law,  the  error  in 
giving  the  wrong  notice  of  the  relief  demanded, — e.  g., 
notifying  defendant  that  plaintiff  would  take  judgment, 
on  default,  for  the  amount  demanded,  the  action  being 
founded  on  a  tort,  and  the  notice  should  have  been  that 
the  plaintiff  would  apply  to  the  court,  etc., — the  mistake 
or  error  was  held  not  to  be  fatal  to  the  jurisdiction  of  the 
court.-    An  irregularity  or  imperfection  in  a  process,  to 
deprive  the  court  of  jurisdiction  of  the  person  of  the 
defendant,  must  be  such  as  to  render  any  judgment  ren- 
dered thereon  vulnerable  on  collateral  attack.^ 

^  218. In  the  service  or  process  or  proof  of 

SERVICE — Personal  service.    Personal  service  of  process 
made  too  late  to  give  the  defendant  the  length  of  notice 

1  Merwin    v.    Hawkes,    31    Kan.      v.  Stevens,  18  Idaho  541,  110  Pac. 
222,    1    Pac.    640.      See    Pracht   v.      1033. 

Pister,  30  Kan.  5C8,  1  Pac.  638.  3  Clause  v.  Columbia  Sav.  &  L. 

2  Snake  River  Valley   Irr.   Dist.      Assoc,  16  Wyo.  450,  90  Pac.  54. 

274 


(;ll.  XI. J  DEFECTS — IN    SERVICE,    ETC.  §  218 

required  by  law,  is  ground  for  dismissing  the  action,^  or 
for  reversal  of  a  default  judgment.-  Defective  servdee 
of  summons  on  a  party,  although  he  may  not  be  a  neces- 
sary party,  though  a  proper  party,  is  reversable  error  ;^ 
and  an  irregular  service  has  been  said  to  be  of  no  eif  ect.^ 
Where  defective  service  of  process  is  alleged,  it  must  be 
made  to  affirmatively  appear  that  the  requirements  of  the 
law  have  not  been  complied  with.^  An  irregular  or  im- 
perfect service  of  process,  to  deprive  the  court  of  juris- 
diction over  the  person  of  the  defendant,  must  be  so 
defective  as  to  render  any  judgment  the  court  may  make 
in  the  case  vulnerable  on  collateral  attack.® 

Proof  of  service  substantially  defective,  is  not  cured  by 
subsequent  knowledge  of  the  fact;  as  where  a  deputy 
sheriff,  or  one  acting  as  a  deputy  sheriff,  making  personal 
service  of  process,  makes  a  return  in  his  own  name  in- 
stead of  in  the  name  of  the  sheriff,'^  A  return  to  the 
service  of  process  stating  that  the  service  was  made  ''by 
leaving  a  copy  thereof  at  the  usual  place  of  residence  of 
the  defendant,"  it  being  made  to  appear  to  the  court  that 
the  defendant  is  a  nonresident,  and  that  the  service  was 
made  by  leaving  the  copy  at  the  house  of  the  defendant's 
father,  the  return  to  the  service  will  be  set  aside  by  the 
court  on  motion  to  quash,^  the  return  of  the  sheriff  being 
impeachable  by  affidavit  or  parol  testimony.^    But  where 

1  Hood  V.  Powers,  57  Ga.  244.  old.;     Hanson    v.    Walcott,     19 

2  Jackson  v.  Dowdy  (Tex.  Civ.  Kan.  207;  Mastin  v.  Gray,  19  Kan. 
App.),  29  S.  W.  693.  458,   27   Am.   Rep.   149;    Crosby  v. 

3  Batre  v.  Auze's  Heirs,  5  Ala.  Farmer,  39  Minn.  305,  40  N.  W.  71; 
173;  Curry  v.  Falkner,  51  Ala.  564.  Walker  v.   Lutz,    14   Neb.    274,   15 

4  Hale  V.  Heyser,  1  How.  Pr.  N.  W.  352;  Kurtz  v.  Isaacs,  25 
(N.  Y.)   220.  Wash.    566,    66    Pac.    141;    North- 

5  Van  Kirk  v.  Wilds,  11  Barb.  western  &  P.  Hypotheek  Bank  v. 
(N.  Y.)  520.  Ridpath,    29    Wash.    687,    70    Pac. 

c  Clause  v.  Columbia  Sav.  &  L.  139;   Wall  v.  Chesapeake  &  O.  R. 

Assoc,  16  Wyo.  450,  90  Pac.  54.  Co.,  37  C.  C.  A.  129,  95  Fed.  454. 

7  Reinhart  v.  Lugo,  86  Cal.  395,  Presumption    as    to    defendant's 

21  Am.  St.  Rep.  52,  24  Pac.  1089.  residence,  arising  from  officer's  re- 

X  Bond  V.  Wilson,  8  Kan.  228,  12  turn,   may   be  overcome   by   parol 

Am.  Rep.  466.  evidence. — Northwestern  &  P.  Hy- 

275 


§  219  CODE  PLEADING  AND  PKACTICE.  [Pt.  T, 

defendants  personally  served  fail  to  appear  and  attack 
the  return,  or  to  claim  defective  service,  or  to  appeal, 
they  can  not  attack  the  service  collaterally.^** 

§  219. Service  by  publication.     Where 

service  of  process  is  made  on  the  defendant  by  publica- 
tion, if  the  affidavit  for  the  order  of  publication  is  in- 
sufficient, no  jurisdiction  of  the  defendant  is  acquired  by 
the  court,  and  any  judgment  rendered,  is  void,^ — e.  g-., 
total  want  in  such  affidavit  of  evidence  upon  a  vital  point, - 
such  as  a  failure  to  state  that  the  defendant  is  a  non- 
resident,^ and  the  like ;  but  if  there  is  not  an  entire  omis- 
sion of  the  facts  on  a  vital  point,  they  being  stated  in- 
sufficiently or  inferentially,  the  service  of  the  process  is 
voidable  merely,  not  void,^  as  is  also  any  judgment  ren- 
dered by  the  court  thereunder.  Any  mere  formal  defects, 
not  going  to  the  substance,  in  the  summons  as  published 
against  a  nonresident  defendant,  will  not  prevent  the 
court  from  acquiring  jurisdiction  f  e.  g.,  a  slight  discrep- 
ancy between  the  summons  as  published  and  the  original 
process.^  A  failure  to  publish  the  summons  for  the  length 
of  time  and  in  the  manner  directed  by  the  order  for  pub- 

potlieek  Bank  v.  Ridpath,  29  Wash,  the  defendant. — Wilson  v.  Ship- 
GST,  70  Pac.  139.  man,  34  Neb.  573,  33  Am.  St.  Rep. 

Return    of   sheriff    impeachable,  660,  52  N.  W.  576. 
where   it  recites   that   the  person  lo  Michels  v.  Stork,  52  Mich.  66, 

served  with  process  was  agent  of  17  N.  W.  833;    Goodrow  v.  Buck- 

the     defendant     corporation,     by  ley,  70  Mich.  513,  38  N.  W.  454. 
'showing    that    such    was    not   the  i  Braly  v.  Seaman,  30  Cal.  610. 

fact.— Great     West     Min.     Co.     v.  2  Harris  v.  Claflin,  36  Kan.  543, 

Woodman  of  Alston  Min.  Co.,  12  13  Pac.  830. 

Colo.  46,  13  Am.  St.   Rep.  201,  20  3  Ogden  v.  Walters,  12  Kan.  282. 

Pac.  771.  •*  Harris  v.  Claflin,  36  Kan.  543, 

Where     return     states     matters  13  Pac.  830;  Britton  v.  Larson,  23 

outside    sheriff's    personal    knowl-  Neb.  806,  37  N.  W.  681. 
edge,  it  may  be  Impeached  in  di-  5  Loring     v.     Binney,     38     Hun 

rect  proceeding  after  judgment.—  (N.  Y.)  152,  8  N.  Y.  Civ.  Proc.  Rep. 

McNeill  V.  Edie,  24  Kan.  108.  297,  3  How.  Pr.  N.  S.  120. 

— Return  of  personal  service  of  6  Clause  v.  Columbia  Sav.  &  L. 

process    may    be    conUadicted    by  Assoc,  16  Wyo.  450,  95  Pac.  54. 

276 


(h.  XL]  WHO    MAY   OBJECT.  §§220,221 

lication,  and  as  required  by  law,  is  not  merely  an  irregu- 
larity, but  a  jurisdictional  defect.'^ 

>§  220.  Persons  who  may  object.  It  is  usually  re- 
garded that  a  defect  in  an  original  process,  or  a  defect 
or  irregularity  in  the  service  thereof,  is  a  matter  purely 
personal  to  the  party  aggrieved  thereby,  and  that  a 
stranger  can  not  be  heard  to  object  because  thereof;^  and 
that  when  there  is  an  improper  or  an  insufficient  service 
on  one  of  the  parties  to  an  action,  any  other  party  to  the 
action  will  not  be  heard  to  object  because  thereof.-  Thus, 
it  has  been  said  that  where  the  sheriff's  return  shows  due 
personal  service,  and  is  regular  on  its  face,  a  codefendant 
may  not  raise  the  question  of  the  sufficiency  of  the  sher- 
iff's return.^  But,  on  the  other  hand,  it  has  been  held 
that  objection  for  want  of  due  publication  against  an 
absent  defendant  may  be  made  by  other  defendants  who 
may  be  affected  adversely  by  any  judgment  or  decree 
against  him.* 

§  221.  Necessity  for  objection.  In  those  cases  in 
which  there  is  a  defect  or  irregularity,  or  other  infirmity, 
in  either  the  process  or  in  the  service  of  the  summons, 
timely  objection  must  be  made^  in  the  proper  manner,- 
otherwise  there  will  be  a  waiver^  of  the  defect,  irregular- 
ity or  other  infirmity."*  Thus,  a  return  to  service  of  proc- 
ess can  not  be  attacked  for  fraud  or  mistake,  unless  the 

7  Waters  v.  Waters,  7  Misc.  77  Pac.  712;  Bank  of  Tennessee  v. 
(N.  Y.)  519,  27  N.  Y.  Supp.  1004.  Anderson,  35  Tenn.  (3  Sneed)  669. 

3  B.  F.  Salzer  Lumber  Co.  v. 
Lindenmeier,  54  Colo.  491,  131  Pac. 
442. 

1  Return  by  deputy  in  own  name  4  McCoy's  Ex'r  v.  McCoy's  De- 
instead  of  in  the  name  of  the  of-      visees   9  W  Va   443 

ficer  for  whom  he  acts  in  making  j  ^g  ^^  ^j^g  ^hen  objection  to 

a  personal  service  of  process,  ob-  j^g  taken,  see,  post,  §  225 

jection   on   ground   of   the   irregu-  .  ^^g  to  mode  and  sufficiency  of 

larity  can  not  be  made  by  a  stran-  objection,  see,  post,  §§  222-224. 

ger   to   the   judgment   rendered.—  .  ^s  to  waiver,  see,  post,  §  239. 

Hill  V.  Gordon,  45  Fed.  276.  4  Pennington  v.  Gillaspie.  63  W. 

2  Adams  v.  Hopkins,  144  Cal.  19.  Va.  551,  61  S.  E.  416. 

277 


As  to  jurisdictional  defects,  see, 
ante,  §  38. 


§  222  CODE  PLEADING  AND  PRACTICE,  [Pt.  I, 

fraud  or  mistake  is  pleaded  f  and  where  a  party  is  sued 
by  a  wrong  name,®  and  fails  to  appear  and  plead  the 
misnomer,  he  is  concluded,  and  in  all  the  further  proceed- 
ings he  may  be  connected  wdth  the  judgment  by  proper 
averments.^ 

<^  222.  Mode  op  objecting  and  sufficiency  theeeof — 
In  general.  An  objection  to  the  form  sufficiency  and 
regularity  of  a  process,  or  of  the  service  or  the  return  of 
service,  must  be  made  in  the  proper  manner  as  well  as 
at  the  proper  time.^  A  service  of  process  may  be  suf- 
ficient to  give  the  court  jurisdiction  and  yet  be  open  to 
attack  on  other  jurisdictional  grounds  ;2  as  where  the 
affidavit  for  service  of  process  by  publication  of  the  sum- 
mons is  made  by  an  agent  of  the  plaintiff  and  states 

(1)  that  the  defendant  is  a  nonresident  of  the  state  and 

(2)  that  his  place  of  residence  is  unknown  to  the  affiant, 
where  the  place  of  residence  of  the  defendant  could  have 
been  learned  by  reasonable  diligence.^ 

Under  the  old  practice,  a  defect  or  irregiilarity  in  a 
writ  of  process,  or  in  the  service  thereof,  which  w^as 
amendable,  could  not  be  taken  advantage  of  by  general 
demurrer,^  and  under  the  New  York  Code  of  Procedure 

5  Everett  v.  Ragan,  1  Ky.  L.  Rep.  4  Marcus  v.  Rovinsky,  95  Me. 
421.  106,  49  Atl.  420;  Cooke  v.  Gibbs,  3 

6  As  to  misnomer  and  proceed-  Mass.  193;  Smith  v.  Dexter,  121 
ings  therefor,  see,  post,  §  658.  Mass.  597, 

T  Vogel  V.  Brown   112  Ind    292,  2  ^  ^    Philadelphia  Co., 

Am.  St,  Rep    187,  14  N.  E..^  ^^  ^^^   ^^     ^^ 

.  As  to  t.me  -'^-"J>^^1^°"  Rep,  941,  943,  1  Ann,  Gas,  225.  63 
should  be  made,  see,  post,  §225.  V,    a    cqa  ^c  q   t5^   -rr 

See,  also,  footnote  10,  this  sec-  L.  R.  A.  896,  46  S.  E.  o66. 
^Qj^  Variance  between  complaint  and 

•2  Leibhardt     v.     Lawrence.     40  process  in  that  the  summons  does 

Utah   243,   120  Pac.   215;    Cohn  v.  not   describe   the   defendant   as   a 

Lawrence,  40  Utah   264,   120   Pac.  corporation,  advantage  thereof  can 

223.  be    taken    by    plea   in    abatement 

3  Leibhardt     v.     Lawrence,     40  only,  not  by  demurrer.— See,  post, 

Utah,  243,  120  Pac.  215.  §  223. 

278 


ch.  XI.]  MODE   OF    OBJECTING.  §  222 

can  not  be  by  an  answer  to  tlie  merits.^  It  was  required 
to  be  by  plea  in  abatement,^  unless  the  defect  was  appar- 
ent upon  the  face  of  the  record,'  in  which  latter  case  it 
was  required  to  be  by  motion  to  quash  or  set  aside  the 
summons  or  the  service  thereof,  as  the  case  might  be.* 
The  pleas  in  abatement  and  in  bar  were  required  to  follow 
each  other.^  Legality  and  sufficiency  of  an  affidavit  for 
service,  under  the  California  Practice  Act,  could  be  called 
in  question  only  by  a  motion  made  in  the  action,  or  by 
appeal  supported  by  a  statement.^'^ 

Under  procedural  codes  it  is  generally  required  that 
the  objections  shall  be  raised  by  demurrer  or  answer; 
and  we  shall  see,  when  we  come  to  treat  of  the  pleadings, 
that  but  one  answer  is  contemplated  by  such  codes,  and 
that  the  defendant  is  required  to  set  up  all  his  defenses, 
or  all  the  defenses  he  elects  to  rely  upon,  in  that  one 
answer.  Matters  in  abatement  are  regarded  as  much  a 
defense  as  matters  in  bar.  A  plea  to  the  merits  no  longer 
waives  the  objections  formerly  taken  by  plea  and  motion, 
provided  these  matters  are  properly  pleaded  in  the 
answer.  This  is  the  doctrine  early  laid  down  in  the  cases 
in  New  York,^^  Indiana,^-  Wisconsin, ^^  and  perhaps  else- 
where, and  by  statute  in  lowa.^^  Thus,  in  a  recent  New 
York  case  it  is  held  that  an  objection  because  of  want  in 
the  court  of  jurisdiction  over  the  subject-matter  of  the 

5  Nellis     V.     Rowles,     41     Misc.  affirming  10  How.  Pr.  40;  Gardner 

(N.  Y.)  313,  84  N.  Y.  Supp.  753.  v.  Clark,  21  N.  Y.  399;    Bridge  v. 

t!  As  to  plea   in   abatement,  see,  Payson,  7  N.  Y.  Super.  Ct.  Rep.  (5 

post,  §223.  Sandf.)    210;   Gardiner  v.  Clark,  6 

7  Cooke  V.  Gibbs,  3  Mass.  193;  How.  Pr.  (N.  Y.)  449;  King  v.  Van- 
Smith  V.  Dexter,  121  Mass.  597.  derbilt.  7  How.  Pr.  (N.  Y.)  38'). 

s  As  to   motion   to  quash   or  set  iJ  Thompson    v.    Greenwood,    28 

aside     summons    or    the     service  Ind.  327;   I3ond  v.  Wagner.  28  Iiid. 

thereof,  see,  post,  §  224.  462. 

■J  Stephen's  Pleading,  p.  430.  i3  Freeman  v.  Carpenter,  17  Wis. 

10  Sharp  v.  Daugherty,  33  Cal.  126;  Dutcher  v.  Butcher,  39  Wis. 
505.  651. 

11  Sweet  V.  Tuttle,  14  N.  Y.  405,  i4  Iowa  Code  1873,  §  2732. 

279 


^223 


CODE  PLEADING  AND  PRACTICE. 


[Ft.  I, 


action,  must  be  raised  by  demurrer  or  answer  and  not  by 
motion  to  quash  or  set  aside  the  summons. ^^ 

In  Alaska,  Missouri  and  Oregon,  however,  a  differ- 
ent doctrine  obtains.  In  Missouri  the  common-law  rule 
that  defenses  in  abatement  are  waived  by  pleading  to  the 
merits  is  enforced  ;'^*^  and  in  Oregon,  an  answer  in  the 
nature  of  a  plea  in  abatement,  is  required  to  be  pleaded 
separately  from,  and  disposed  of  before,  a  plea  in  bar  or 
answering  to  the  merits,^'  and  if  not  pressed  before  either 
of  the  latter  is  presented,  is  regarded  as  being  waived.^^ 
The  Oregon  rule  seems  to  have  been  adopted  in  Alaska. ^^ 

§  223.    By  plea.    It  was  formerly  the  rule,  which 

seems  to  have  been  still  retained  in  some  jurisdictions, 
that  a  plea  in  abatement  was  the  proper  method  in  which 
to  raise  objection  to  the  legality  of  the  issuing  of,  or  of 
the  ser\dce  of,  a  process,^  although  it  might  also  be  raised 
by  a  motion  to  quash  or  set  aside.-    The  return  of  process 


15  Mabon  v.  Ongley  Electric  Co., 

24  App.  Div.  50,  48  N.  Y.  Supp.  973; 
judgment  reversed  on  another 
point,  156  N.  Y.  196,  5  N.  Y.  Ann. 
Cas.  398,  50  N.  E.  805. 

le  Rippstein  v.  St.  Louis  Mut.  L. 
Ins.  Co.,  57  Mo.  86,  and  Fordyce  v. 
Hathorn,  57  Mo.  120,  following 
Cannon  v.  ^McManus,  17  Mo.  345. 

1"  Hopwood  V.  Patterson,  2  Ore. 
49,  51;  Oregon  Cent.  R.  Co.  v. 
Waite,  3  Ore.  91,  95-6;  Oregon 
Cent.  R.  Co.  v.  Scoggin,  3  Ore.  161; 
Derkeny  v.  Belfils,  4  Ore.  259; 
Bridal  Veil  Lumber  Co.  v.  Johnson, 

25  Ore.  108,  34  Pac.  1027;  Cham- 
berlin  v.  Hibbard,  26  Ore.  433,  38 
Pac.  438;  Morgan's  Estate,  In  re, 
46  Ore.  242,  78  Pac.  1030;  Curtze 
X.  Iron  Dyke  Copper  Min.  Co.,  46 
Ore.  607,  81  Pac.  815,  817;  McClung 
V.  McPherson,  47  Ore.  86,  82  Pac. 
13;  Lassas  v.  McCarty,  47  Ore.  447, 
84    Pac.    78;    Wythe    v.    Myers,    3 


Sawy.  595,  600,  Fed.  Cas.  No.  18119; 
Oregon  R.  Co.  v.  Oregon  R.  &  Nav. 
Co.,  10  Sawy.  464,  469,  22  Fed.  248. 

Matter  in  abatement  not  pleaded 
is  waived. — Derkeny  v.  Belfils,  4 
Ore.  258;  Bump  v.  Cooper,  20  Ore. 
529,  26  Pac.  489;  Bridal  Veil  Lum- 
ber Co.  V.  Johnson,  25  Ore.  108,  34 
Pac.  1027;  Morgan's  Estate,  In  re, 
46  Ore.  242,  78  Pac.  1030;  McClung 
V.  McPherson,  47  Ore.  86,  82  Pac. 
13. 

18  Oregon  Cent.  R.  Co.  v.  Waite, 
3  Ore.  91,  95-6;  Bridal  Veil  Lumber 
Co.  V.  Johnson,  25  Ore.  108,  34 
Pac.  1027;  Oregon  R.  Co.  v.  Ore- 
gon R.  &  Nav.  Co.,  10  Sawy.  464,  22 
Fed.  248. 

10  See  Elliott  v.  Kuzek,  2  Alaska 
589. 

1  Lane  Bros.  &  Co.  v.  Bauser- 
man,  103  Va.  146,  106  Am.  St.  Rep. 
872,  48  S.  E.  857. 

2  Id.    See,  also,  post,  §  224. 


280 


ch.  XI.] 


OBJECTION — BY    MOTIOX. 


§224 


being  void  on  its  face,  objection  was  required  to  be  by 
plea;^  but  the  return  could  not  be  falsified  by  such  plea."* 
The  objection  being  founded  upon  extrinsic  facts,  it  had 
to  be  taken  by  plea;^  but  when  facts  on  which  objection 
based  appeared  in  face  of  record,  proper  method  was  by 
motion  to  dismiss,^  and  not  by  plea  in  abatement."  Vari- 
ance between  process  and  complaint  could  be  taken  by 
plea  in  abatement  only,  and  at  the  proper  time,  an<l  this 
is  the  rule  under  the  code^  of  West  Virginia.^ 


§224. 


By  motion.     Under  the  old  practice  the 


proper  method  of  objecting  to  the  sufficiency  of  the  proc- 
ess,^ or  to  the  sufficiency  of  the  service  thereof,-  where 
the  infirmity  appeared  upon  the  face  of  the  record,'^  was 
by  motion.^ 


3  Lamb  v.  Russell,  81  Miss.  382, 
32  So.  916. 

4  McDaniels  v.  De  Groot,  77  Vt. 
160,  50  Atl.  166. 

5  Willard  v.  Zehr,  215  111.  148,  74 
N.  E.  107,  affirming  116  111.  App. 
496;  Belknap  v.  Gibbens,  54  Mass. 
(13  Mete.)  471. 

Defendant  served  bearing  same 
name  as  chief  justice  of  court,  by 
whom  writ  bears  test,  does  not 
show  they  are  one  and  the  same 
person;  that  fact  must  be  pleaded 
in  abatement. — Belknap  v.  Gib- 
bens, 54  Mass.  (13  Mete.)  471. 

Truthfulness  of  return  admitted, 
sufficient  on  its  face,  insufficiency 
of  return  because  of  matters  de- 
hors the  record  must  be  raised  by 
plea  in  abatement.  —  Ellis-Young 
Co.  V.  East  Coast  Lumber  Co.,  50 
Fla.  217,  39  So.  198;  Putnam  Lum- 
ber Co.  V.  Ellis-Young  Co..  50  Fla. 
251,  39  So.  193;  Aetna  Ins.  Co.  v. 
Black,  80  Ind.  513. 

Under  procedural  cedes,  usually 
required  to  be  raised  by  answer 
f.e'ting  out  the  extrinsic  facts. 


6  Hilton  V.  Consumers'  Can  Co., 
103  Va.  255,  48  S.  E.  899. 

7  Id. 

8  Code,  ch.  25,  §  15. 

9  See  Pennington  v.  Gillaspie,  63 
W.  Va.  551,  61  S.  E.  46;  Varney  v. 
Hutchinson  Lumber  &  Mfg.  Co., 
64  W.  Va.  422,  63  S.  E.  203;  Snyder 
V.  Philadelphia  Co.,  54  W.  Va.  149, 
102  Am.  St.  Rep.  941,  1  Ann.  Cas. 
225,  63  L.  R.  A.  896,  46  S.  E.  366. 

1  Lane  Bros.  &  Co.  v.  Bauser- 
man,  103  Va.  146,  106  Am.  St.  Rep. 
872,  70  L.  R.  A.  1007,  48  S.  E.  857; 
Benton  v.  Mcintosh,  93  Fed.  132; 
Wale  V.  Chesapeake  &  O.  R.  Co., 
37  C.  C.  A.  129,  93  Fed.  398. 

2  Id. 

3  Padgett  V.  Dutchtowu  Sulpliur. 
Copper  &  Iron  Co.,  97  Tenn.  600, 
37  S.  W.  698;  Hilton  v.  Consumers' 
Can  Co.,  103  Va.  255,  48  S.  E.  S99. 

!  Engelke  &  Feiner  Milling  Co. 
V.  Grunthal,  46  Fla.  349.  35  So.  17; 
Scott  V.  Stockholders'  Oil  Co..  122 
Fed.  835. 


281 


§  224  CODE  PLEADING  AND  PRACTICE.  [Pt.  J, 

Under  procedural  codes  the  same  practice  is  recognized 
under  like  conditions  in  many  states  :^  As  where  the  proc- 
ess is  irregular  or  defective;^  service  of  process  insuf- 
ficient f  notice  given  defendant  from  time  of  service  until 
answer-day  too  short  ;'^  supplemental  summons  and  sup- 
plemental complaint,  bringing  in  new  parties,  served 
without  leave  of  the  court  f  defendant  decoyed  into  court 
for  the  purpose  of  serving  process,^'^  or  service  on  non- 
resident who  is  privileged  from  service  of  process  because 
necessarily  attending  court  ;^^  or  misnomer  of  defendant 
in  summons  of  which  a  substantial  service  has  been 
made,^-  but  this  decision  was  reversed.^^ 

Entitling  motion  with  the  name  of  the  first  parties 
plaintiff  and  defendant,  or  either,  followed  by  *  *  et  al. ' '  is 
sufficient,  in  the  absence  of  proof  that  the  party  complain- 
ing was  misled  or  prejudiced  \>j  a  failure  to  insert  the 
names  of  all  the  parties.^'* 

Addressed  to  sound  discretion  of  court,  are  all  motions 
to  quash  or  vacate  a  process,  or  a  service  of  process;  a 
refusal  of  the  motion  will  not  be  disturbed  on  appeal  in 
the  absence  of  an  abuse  of  discretion,^^  but  where  denied, 

5  Necessity  of  motion  to  quash  App.   Div.    (N.   Y.)    617,   76   N,   Y. 

-where    the    proceedings    quasi    in  Supp.  102. 

rem,  and  not  service  sufficient  to  lo  Earth  v.  Marcus,  Howell  N.  P. 

confer  jurisdiction  on  the  court. —  (Mich.)  11. 

Mosher  v.  Banking  House  of  Bar-  ii  Motion   to   set   aside   service, 

tholow,  Lewis  &  Co.,  6  Mo.  App.  and    not    motion    to    dismiss    the 

599.  cause,  proper  remedy. — Cooper  v. 

G  Parltner  v.  Wardner,  2  Idaho  Wyman,  122  N.  C.  784,  65  Am.  St. 

(Hash.)  285,  13  Pac.  172.  Rep.  731,  29  S.  E.  947. 

7  Foster  V.  Markland,  37  Kan.  32,  i^  Farrington    v.    Muchmore,    30 

14  Pac.  452.  Misc.    (N.  Y.)    218,  62  N.  Y.   Sup. 

Must   be   timely,   too   late   after  165. 


K'^ 


judgment     or    decree;     then    the  1 3  Farrington    v.    Muchmore, 

judgment  or  decree  itself  must  be  App.   Div.    (N.   Y.)    247,   65   N.    Y. 

attacked     directly.  —  Baldwin    v.  Supp.  8. 

Burt,  54  Neb.  287,  74  N.  W.  594.  i-*  Jerauld  County  v.  Williams,  7 

s  Levy  v.  Pilger,  59  Neb.  561,  81  S.  D.  196,  63  N.  W.  905. 

N.  W.  507.  15  Kennedy  v.  Mulligan,  136  Cal. 

9  Boyle  &  Everts  Co.  v.  Fox,  72  556,  69  Pac.  291;   Teinolat  v.  S.  J. 

282 


eh.  XI.]  OBJECTION — TIME   OF    TAKING.  §  225 

defendant  may  answer  to  the  merits  without  waiving  the 
benefit  of  his  exception  to  the  order  denying  the  motion  ;^^ 
but  it  has  been  held  otherwise  in  Colorado/^  Oregon/^ 
and  Wisconsin. ^^ 

§  225.  Time  when  objection  to  be  taken.  It  is  the 
general  rule  in  all  jurisdictions,  alike  under  the  old  prac- 
tice and  under  the  procedural  codes,  that  timely  objection 
must  be  made  to  a  process  defective,  irregular  or  insuf- 
ficient, or  to  a  service  of  a  summons  which  is  defective 
or  insufficient  or  illegal,  but  remediable, — that  is,  upon 
the  first  opportunity,^  otherwise  the  defect  will  be  deemed 


Held  Co.,  17  Misc.  (N.  Y.)  556,  4 
N.  Y.  Supp.  692. 

ic  Lyman  v.  Hamilton,  44  Cal. 
630;  Kent  v.  West,  50  Cal.  185, 
186;  Arroya  Ditch  &  Water  Co. 
V.  Superior  Court,  92  Cal.  47,  52, 
27  Am.  St.  Rep.  94,  28  Pac.  54; 
McDonald  v.  Agnew,  122  Cal.  448, 
450,  15  Pac.  125;  Black  v.  Clen- 
denin,  3  Mont.  44,  49;  Miner  v. 
Francis,  3  N.  D.  549,  553,  58  N.  W. 
343;  Kinkade  v.  Myers,  17  Ore. 
470,  472,  21  Pac.  557;  Benedict  v. 
.lohnson,  4  S.  D.  387,  392,  57  N.  W. 
66;  Fisher  v.  Crowley,  57  W.  Va. 
319,  4  Ann.  Cas.  2S2,  50  S.  E.  424; 
Harkness  v.  Hyde,  98  U.  S.  476, 
25  L.  Ed.  237;  Lung  Chung  v. 
Northern  Pac.  R.  Co.,  10  Sawy.  17, 
20,  19  Fed.  254,  256. 

Compare:  Clark,  In  re,  125  Cal. 
388,  392,  58  Pac.  22. 

IT  Union  Pac.  R.  Co.  v.  De  Busk, 
12  Colo.  294,  297,  13  Am,  St.  Rep. 
223,  20  Pac.  752. 

IS  I  n  Oregon,  discussing  the 
question,  and  holding  adversely  to 
the  doctrine  laid  down  in  the  text. 
Lord,  J.,  writing  the  opinion,  says: 
"I  am  not  entirely  satisfied  that  an 
answer  to  the  merits  waives  an 
objection  duly  made  to  an  illegal 


service  of  a  summons  which  is 
questioned  by  a  special  appear- 
ance; but  it  is  thought  by  the 
court  that  the  better  reason  is 
with  those  authorities  which  hold 
that  a  party  waives  his  objections 
to  a  defective  summons,  or  a  de- 
fective service  of  a  legal  sum- 
mons, whether  overruled  or  not, 
when  he  subsequently  appears 
generally  and  defends  the  action." 
— Sealy  v.  California  Lumber  Co., 
19  Ore.  94,  96,  24  Pac.  197,  198. 

19  Corbett  v.  Physicians'  Cas- 
ualty Assoc,  135  Wis.  505,  513,  16 
L.  R.  A.  (N.  S.)  177,  115  N.  W.  365, 
holding  that  where  party  goes  to 
trial  on  the  merits  after  objection 
to  service  of  process,  he  thereby 
waives  objection  of  the  defects, 
and  can  not  afterwards  question 
the  jurisdiction  of  the  court. 

1  Pittman  v.  .Jones,  53  Ga.  134; 
Reynolds  v.  Atlantic  Nat.  B.  & 
L.  Assoc,  104  Ga.  703.  30  S.  C. 
942;  Grand  Lodge,  Brotherhood  of 
Locomotive  Engineers,  v.  Cramer, 
60  111.  App.  212;  Miller  v.  Green, 
1  Rlackf.  (Md.)  469;  Stevens  v. 
Getchell,  11  Me.  443;  Whiting  v. 
Hoilister,  2  Mass.  102;  Gilbert  v. 
Nantucket  Bank,  5  Mass.  97;  C:r- 


28^ 


§226 


CODE  PLEADING   AND   PRACTICE. 


[Pt.I, 


to  have  been  waived;-  such  objection  can  not  be  raised 
after  trial.^  Where  the  objection  is  to  a  defect  that  is 
jurisdictional,^  it  may  be  made  at  any  time ;  e.  g.,  where 
there  was  no  copy  of  the  process  accompanying  the  ser- 
vice of  the  copy  of  the  complaint  f  where  the  process  was 
without  the  seal  of  the  court;''  where  it  appears  from  the 
record  that  the  process  was  served  in  territory  to  which 
it  did  not  run,^  and  the  like. 

<^  226.  Quashing  or  setting  aside  process  or  service 
THEREOF — In  general.  Iu  the  practice  under  procedural 
codes,  as  well  as  under  the  old  practice,  a  defective  or 
irregular  or  insufficient  process,  or  a  defective  or  insuf- 
ficient or  illegal  service  thereof,  may  be  quashed  or  set 
aside.  A  motion  to  quash  applies  to  existing  writs  of 
process  and  not  to  mere  applications  therefor;^  and  it 
has  been  said  that  where  a  plea  in  abatement  has  been 


penter  v.  Aldrich,  44  Mass.  (3 
Mete.)  58;  Foote  v.  Knowles,  45 
Mass.  (4  Mete.)  386;  Brewer  v. 
Sibley,  54  Mass.  (13  Mete.)  175; 
Stilson  V.  Greeley,  2  Mich.  N.  P. 
222;  Wooten  v.  Wingate,  14  Miss. 
(6  Smed.  &  M.)  271;  Baldwin  v. 
Burt,  54  Neb.  287,  74  N.  W.  594; 
Avogardo  v.  Bull,  4  E.  D.  Smith 
(N.  Y.)  384;  Jlunter  v.  Lester,  10 
Abb.  Pr.  (N.  Y.)  260,  18  How.  Pr. 
347;  Pollard  v.  Union  Pac.  R.  Co., 
7  Abb.  Proe.  N.  S.  (N.  Y.)  70; 
Willet  V.  Stewart,  43  Barb.  (N.  Y.) 
98;  Ahner  v.  New  York,  N.  H.  & 
H.  R.  Co.,  20  N.  Y.  Civ.  Proe.  Rep. 
318,  14  N.  Y.  Supp.  365;  Penning- 
ton V.  Gillaspie,  63  W.  Va.  551, 
61  S.  E.  416. 

2  As  to  waiver,  see,  post,  §  239. 

3  Patmore  v.  Rambauer,  41  Kan. 
295,  21  Pac.  284;  Sanders  v.  Cir- 
cuit Court,  3  Ky.  (1  Hardin)  17; 
McLeod  V.  Harper,  43  Miss.  42; 
Baldwin  v.  Burt,  54  Neb.  287,  74 
N.   W.   594;    M.vers  v.   Overton,   4 


E.  D.  Smith  (N.  Y.)  428,  2  Abb. 
Pr.  344;  Hunter  v.  Lester,  10  Abb. 
Pr.  (N.  Y.)  260,  18  How.  Pr.  347; 
Pennington  v.  Gillaspie,  63  W.  Va. 
551,  61  S.  E.  416. 

After  decree  entered  and  sale 
made,  motion  to  quash  by  person 
made  a  party  but  not  served  with 
process,  is  not  the  proper  remedy; 
the  decree  should  be  attacked 
directly. — Baldwin  v.  Burt,  54  Neb. 
287,  74  N.  W.  594. 

4  As  to  jurisdictional  defects, 
see,  ante,  §  38. 

5  Brady  v.  Hardeman,  17  Ga.  67, 

6  Tibbetts  v.  Shaw,  19  Me.  204. 

7  Turrill  v.  Walker,  4  Mich.  177. 
1  People  V.  New  York  C.   &   H. 

River  R.  Co.,  28  Hun  (N.  Y.)  543, 
2  N.  Y.  Civ.  Proe.  Rep.  (McCarty) 
345,  3  N.  Y.  Civ.  Proe.  11,  reversing 
2  Civ.  Proe.  Rep.  (Browne)  82, 
63  How.  Pr.  291;  People  v.  New 
York,  L.  E.  &  W.  R.  Co.,  2  N.  Y. 
Civ.   Proe.    (McCarty)    345. 


284 


ell.  XL]  SETTIXG   ASIDE   SERVICE.  §  226 

held  to  be  insufficient  on  demurrer,  a  motion  to  quash, 
based  on  the  same  grounds,  will  not  be  entertained.^  The 
merits  of  the  plaintiff's  cause  are  not  involved  on  a  mo- 
tion to  quash  a  process  or  the  service  thereof,"  conse- 
quently a  final  judgment  against  the  plaintiff  on  quashing 
the  process,  or  its  service,  is  error. ^  The  fact  that  a  de 
facto  clerk  issuing  a  process  has  no  title  to  the  office,  is 
not  ground  for  quashing  the  same.^  A  mere  clerical  error 
in  the  process,  consisting  in  stating  that  the  complaint 
was  filed  on  March  twentieth  instead  of  on  February 
twentieth,  where  the  process  was  issued  and  served  on  the 
twentieth  day  of  February,  is  not  ground  for  quashing 
the  process  or  the  service  thereof.^  The  process  served 
by  a  person  not  having  authority  under  the  law  to  do  so, 
the  court  acquires  no  jurisdiction,  and  the  summons  and 
service  thereof  will  be  set  aside  on  motion."  On  motion 
to  quash  or  set  aside  an  alias  summons,  the  defendant  is 
entitled  to  show,  by  affidavit,  that  the  cause  had  been 
dismissed  because  of  a  failure  of  the  plaintiff  to  use  due 
diligence  in  causing  the  writ  of  process  to  be  issued.^ 

Common  counts  being  held  to  be  permissible  under 
some  of  the  procedural  codes,  by  reason  of  unwarranted 

2  Grand  Lodge  of  Brotherhood  ville  &  N.  R.  Co.  v.  Greenbrier 
of  Locomotive  Firemen  v.  Cramer,  Distillery  Co.,  170  Ky.  775,  187 
164   111.   9,   45   N.   E.   165.  S.  W.  296. 

3  Montgomery  v.  Boyd,  65  App.  4  Burnett  v.  Manifee,  4  Ark.  (4 
Div.  (N.  Y.)  128,  10  N.  Y.  Ann.  Cas,  Pike)  140. 

279,  72  N.  Y.  Supp.  611;    Meaney  5  Harbaugh    v.    Winsor,    38    Mo. 

V.  Way,  108  App.  Div.  (N.  Y.)  290,  327. 

95  N.  Y.  Supp.  745;    Thorburn  v.  6  Western    Union    Tel.     Co.     v. 

Gates,  171  N.  Y,  Supp.   568;    Em-  Johnson,  16  Tex.  Civ.  App.  546,  41 

bree  v.  McLennan,  18  Wash.  657,  S.  W.  367.     See  Alford  v.  Hoag,  8 

52  Pac.  241.  Kan.  App.  141,  54  Pac.  1105. 

See,    also,    post,    §  228,    footnote  See,  also,  post,  §  228,  footnote  4. 

4.  ">  Winterroth    v.    Minschlag,    68 

Misjoinder    of    action    and    mis-  App.   Div.    (N.    Y.)    324,   74   N.    Y. 

joinder  of  parties,  are  not  defects  Supp.   124. 

which  can  be  raised  on  motion  to  8  Parsons  v.  Hill,  15  App.  D.  C. 

quash  service  of  summons. — Louis-  532. 


§227 


CODE  PLEADING  AND  PRACTICE. 


[Ft.  1, 


construction  of  the  court,'-*  it  is  thought  that  in  such  juris- 
dictions, where  there  are  two  or  more  defendants,  and  the 
cause  of  action  is  on  a  contract  upon  which  one  of  the 
defendants  is  not  liable  under  the  statute, — e.  g.,  a  mar- 
ried woman  on  her  note, — and  the  complaint  also  contains 
the  common  counts,  that  the  summons  should  not  be 
quashed.^" 

Objection  to  sustaining  motion  to  quash  must  be  timely 
taken, ^^  or  right  to  a  rehearing  of  the  motion  will  be  lost.'- 


§227. 


The  process.    It  has  been  said  that  wiiere 


the  process  is  irregular,  or  defective,  the  remedy,  if  any, 
is  by  application  to  the  trial  court  to  quash  or  set  aside 
the  summons.^  The  clerk  of  the  court  being  without 
authority  or  power  under  the  statute-  to  issue  process 
until  the  complaint  is  filed  in  his  office,  a  summons  issued 
and  served  before  the  complaint  is  filed  will  be  quashed 
on  motion.^  A  failure  of  the  process  to  state  all  the  relief 
demanded  in  the  complaint  wdll  not  be  a  ground  for 
quashing  the  summons  in  those  cases  in  which  a  copy  of 
the  complaint  is  served  with  the  copy  of  the  summons.* 


9  See,  ante,   §  26. 

10  See  Harvard  Pub.  Co.  v.  Ben- 
jamin, 84  Md.  333,  57  Am.  St.  Rep. 
402,   35   Atl.    930. 

11  As  to  timely  objection  gen- 
erally, see,  ante,  §  225. 

ii!  Cannon  v.  Binney,  6  Kan. 
•App.   188,  51   Pac.  298. 

1  Parke  v.  Wardner,  2  Idaho 
263,  13  Pac.  172.  See  Behlow  v. 
Shorb,  91  Cal.  141,  145,  27  Pac.  546. 

See,  also,  cases  cited  in  foot- 
note 14,  this  section. 

Initials  of  Ciiristian  name,  only, 
given  of  plaintiff's  name,  defen-. 
clant  on  motion  to  quash  or  set 
aside  the  process  should  make  a 
showing  of  plaintiff's  true  name. — 


Newton   v.    Magee,   31    S.    D.    210, 
140   N.   W.   252. 

Under  Colorado  practice,  it  is 
not  sufficient  ground  to  quash  a 
summons  that  it  was  signed  by 
the  attorneys  of  the  plaintiff,  and 
was  not  under  the  seal  of  the 
court. — Comet  Consol.  Min.  Co.  v. 
Frost,  15  Colo.  310,  25  Pac.  506; 
Rand  v.  Pantagraph  Co.,  1  Colo. 
App.  270,  28  Pac.  661. 

2  As  under  Okla.  Comp.  Laws 
1909,  §§  5591,  5593. 

3  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Lambert,  31  Okla.  300,  Ann.  Cas. 
1913E,  329,  121  Pac.  654. 

4  Sage  Inv.  Co.  v.  Haley,  59 
Colo.  504,  149  Pac.  437.  See  Higley 
V.  Pollock,  21  Nev.  19S,  27  Pac. 
895. 


286 


ell.  XI.]  QUASHING   PROCESS.  §  227 

The  fact  that  tlie  process  is  addressed  to  the  sheriff,  in 
an  action  in  wliich  he  is  a  party,  but  delivered  to  the 
coroner  for  service  and  served  by  him,  under  a  statute 
providing  that  when  the  sheriff  is  a  party  to  the  action 
process  shall  be  served  by  the  coroner,-^'  has  been  said  to 
be  irregular,  and  that  the  summons  will  be  set  aside  on 
motion.^  Wliere  the  defendant  is  shown  to  have  been  and 
still  is  a  resident  of  the  state,  an  affidavit  for  service  of 
process  by  publication  of  summons  will  be  quashed." 
Fraud  and  deceit  employed^  to  inveigle  a  defendant 
within  the  jurisdiction  of  the  court  for  the  purpose  of 
instituting  suit  and  securing  service  of  process  on  him 
within  such  jurisdiction,  the  summons  will  be  quashed  or 
set  aside.® 

Variance  behveen  process  and  complaint  is  a  defect 
which  can  not  be  reached  by  a  motion  to  quash  the  sum- 
mons.^*^  Thus,  where  the  process  varied  from  the  com- 
plaint in  respect  to  the  demand  of  the  plaintiff,^^  the 
process  setting  out  that  the  plaintiff  claimed  a  specified 
amount  as  due  under  a  contract  of  employment,  specify- 
ing the  terms  of  such  contract,  and  the  complaint  set  up 
a  contract  of  employment,  and  the  loss  of  wages  through 
wrongful  discharge,  and  alleging  a  refusal  to  pay  ''said 
wages,"  but  demanded  a  sum  in  excess  of  the  \vages 
under  the  contract  for  the  time  described,  and  in  excess 
of  the  sum  stated  in  the  summons,  the  court  held  that, 
under  a  statute^^  requiring  defects  in  pleading  and  pro- 
ceeding, not  affecting  substantial   rights,   to   be   disre- 

5  As  Kan.  Code  Civ.  Proc,  §  701.      Mfg.    Co.,    37    Kan.    523,    15    Pac. 

6  Pelham   v.   Edwards,   45   Kan.      562. 

547,  26  Pac.  41.  See,  ante,    §  213,   footnote   7. 

7  Talbert  v.  Paden,  30  Olda.  403,  lo  Jones  v.  Cox,  7  Mo.  173;  Fi-ee- 
121  Pac.  212.  man  v.  Camden,  7  Mo.  298. 

8  As  to  fraud  in  procuring  ser-  n  As  to  the  demand  to  be  stated 
vice  of  process,  see,  ante,  §  213.  in  summons,  see,  ante,  §  137. 

0  Van    Horn    v.    Great    Western  i-'Colo.  Civ,  Code,  §§78,  443, 

287 


§228 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  I, 


garded,  the  summons  could  not  be  quashed  or  set  aside 
because  of  the  variance.^* 

Stay  of  proceedings  not  worked  by  notice  of  motion  to 
quash  summons,  nor  an  extension  of  the  time  in  which  to 
appear  and  answer  specified  in  the  summons,^*  and  under 
a  statute  providing  that  if  the  defendant  fails  to  appear 
and  answer,  the  clerk  of  the  court  may,  on  request,  enter 
default,  and  where  the  demand  is  for  a  money  judgment, 
may  enter  judgment  against  the  defendant,  the  clerk  of 
the  court  may  enter  judgment  notwithstanding  the  pen- 
dency of  a  motion  to  quash  the  summons. ^^ 


§228. 


The  ser\t:ce  or  summons — Personal  serv- 


ice. The  process  may  be  in  all  respects  regular  and  suf- 
ficient, but  the  service  thereof  may  be  irregular  or 
insufficient  or  illegal,  or  there  may  be  jurisdictional  de- 
fects ,^  in  either  of  which  cases,  it  seems,  objection  may 
be  taken  by  motion  to  quash  or  set  aside  the  service  of 
the  summons,  where  the  objection  is  timely  taken. ^  Thus, 


13  Rich  V.  Collins,  12  Colo.  App. 
511,    56    Pac.   207. 

In  Nevada,  under  a  similar 
statute,  the  same  rule  is  applied. 
— See  Higley  v.  Pollock,  21  Nev. 
198,  27  Pac.  895. 

14  Shinn  v.  Cummins,  65  Cal.  97, 
G8.  3  Pac.  133;  McDonald  v.  Sweet, 
76  Cal.  258,  18  Pac.  324;  California 
Imp.  Co.  V.  Baroteau,  116  Cal.  136, 
138,  47  Pac.  1018;  Mantle  v.  Casey, 
31  Mont.  414,  78  Pac.  593;  Higley 
V.  Pollock,  21  Nev.  198,  27  Pac. 
895;  Garvie  v.  Greene,  9  S.  D. 
608,  609,  70  N.  W.   847. 

15  Higley  v.  Pollock,  21  Nev. 
198,  27  Pac.  895. 

1  As  to  jurisdictional  defects, 
Bee,  ante,  §  38. 

2  Karosas  v.   Susquehanna   Coal " 
Co.,    172    App.    Div.    (N.    Y.)    873, 
158  N.  Y.  Supp.  1021. 

California  doctrine  is  that  a  de- 


fendant wishing  to  test  the  suf- 
ficiency of  the  service  of  process 
must  appear  and  make  the  appro- 
priate motion  at  the  trial. — Drake 
V.  Duvenick,  45  Cal.  455;  Brum 
V.  Ivins,  154  Cal.  17,  129  Am.  St. 
Rep.  137,  96  Pac.  876;  McGinn  v. 
Rees,  33  Cal.  App.  291,  294,  165 
Pac.  52. 

— Motion  to  quash  service  of 
process  and  not  motion  to  dismiss 
the  cause  is  the  proper  remedy. — 
Roberts  v.  Superior  Court,  30  Cal. 
App.  714,   159   Pac.  465. 

Clerk  without  authority  to  issue 
summons,  its  service  will  be 
quashed  on  motion. — Atchison,  T. 
&  S.  F.  R.  Co.  v.  Lambert,  31  Okla. 
300,  Ann.  Cas.  1913E,  329,  121  Pac. 
654. 

Plaintiff's  right  of  action  barred 
by  limitation  of  statute  if  service 
of    summons    upon   defendant   set 


288 


ch.  XI.]  QUASHING  SERVICE.  §  228 

where  suit  is  instituted  in  the  wrong  county  under  statu- 
tory provision, — e.  g.,  suit  for  divorce,  in  Oregon, — the 
proper  method  to  raise  the  objection  is  by  motion  to 
quash,  supported  by  affidavit.^  But  the  sufficiency  of  the 
complaint  can  not  be  questioned  on  a  motion  to  quash  or 
set  aside  service  of  summons.^  It  is  the  irregularity  or 
insufficiency  or  illegality  of  the  service  of  process  that  is 
raised  by  a  motion  to  quash  such  service,  and  the  duty 
rests  upon  the  defendant  to  point  out  the  irregularity  or 
insufficiency  or  illegality  which  renders  the  service  void- 
able.^ The  fact  that  the  process  designates  the  defen- 
dants by  supposed  names,  their  real  names  being  un- 
known, is  not  ground  for  quashing  the  service  of  the 
summons,®  the  remedy  for  the  defect  is  a  plea  of  mis- 
nomer; and  a  return  to  a  process  shomng  service  upon 
the  defendant  by  the  initials  of  his  Christian  name, 
merely,  will  not  be  quashed  or  set  aside  unless  it  is  made 
to  appear  that  such  initials  are  not  defendant's  full 
iiame.'^  However,  an  officer's  return  to  process  may  be 
(|uestioned  by  motion  to  quash  the  service,  supported  by 
affidavit;^  but  where  the  return  of  the  sheriff  showed  that 
a  copy  of  the  complaint  was  served  with  a  copy  of  the 
summons,  on  a  motion  to  quash  the  service,  on  the  alleged 

aside,    court    should    be    satisfied  5  Smith  v.  Delane,  74  Neb.  594, 

service  was  clearly  insufficient  be-  104  N.  W.  1054. 

fore  granting  the  motion. — Wolski  Defects    not    pointed    out    in 

V.  Booth,  93  Misc.  (N.  Y.)  651,  157  motion   to   quash  service  of  sum- 

N.  Y.  Supp.  294.  mons,     properly     denied     on     the 

Time  to  appear  being  in  excess  ground  that  it  presents  nothing  on 

of  that  required  by  statute,  motion  which  to  rule. — Bankers'  Security 

to   quash   or  dismiss   the   process  Co.  v.  Holly,  Town  of,  134  C.  C.  A. 

for   this    irregularity    properly  536,   219  Fed.  96. 

denied.  —  Armstrong    v.    May,    50  6  Davis  v.  Jennings,  78  Neb.  462, 

Okla.  539,  155  Pac.  238.  Ill  N.  W.  128. 

3  Hubner  v.  Hubner,  67  Ore.  557,  7  German  Ins.  Co.  v.  Fredericks, 
136  Pac.  667.  57  Neb.  538,  77  N.  W.  1106.     See 

4  Whittier  v.  Woods,  57  Ore.  432,  Newton   v.   Magee,   31   S.   D.   216, 
112   Pac.   408.  140  N.  W.  252. 

See,  also,  supra,  §  226,  footnote  8  Wall  v.   Chesapeake   &   O.   R. 

3.  Co.,  37  C.  C.  A.  129,  95  Fed.  398. 

I  Code  PI.  and  Pr.— 19  289 


§  228  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

ground  that  no  copy  of  the  complaint  was  served  with  the 
copy  of  the  summons,  supported  by  affidavit,  and  it  ap- 
pearing on  the  hearing  that  a  paper  purporting  to  be  a 
copy  of  the  complaint  was  served  with  the  copy  of  the 
summons,  on  refusal  of  the  defendant  to  produce  the 
])aper  thus  served,  in  compliance  with  the  order  of  the 
court,  the  motion  to  quash  will  properly  be  denied." 
Where  the  sheriff's  return  to  a  process  is  susceptible  of 
two  constructions,  which  are  equally  rational,  the  service 
of  the  summons  will  be  quashed  for  the  irregularity.^*' 
The  return  being  that  the  sheriff  served  the  process  "by 
leaving  a  copy  thereof  at  the  usual  place  of  residence  of 
the  defendant,"  it  being  made  to  appear  that  the  defen- 
dant is,  and  was  at  the  time  of  service,  a  nonresident  of 
the  state,  the  service  will  be  quashed.^^ 

Service  not  set  aside  on  the  ground  that  the  name  of  the 
person  served  is  not  the  name  inserted  in  the  summons 
as  the  name  of  the  defendant  in  the  action,  where  the 
plaintiff  insists  that  the  person  served  is  the  person  de- 
sired;^- and  in  Oklahoma  will  not  be  set  aside  because  all 
the  plaintiffs  are  not  named  in  the  process. ^^  Under  a 
statute  providing  that  defects  in  the  pleadings  and  pro- 
ceedings, not  affecting  substantial  rights,  shall  be  disre- 
garded,^^ service  of  summons  will  not  be  set  aside  merely 
because  the  plaintiff's  Christian  name  is  therein  desig- 
nated as  "Sam,"  when  it  should  have  been  "Samuel," 
the  plaintiff  being  identified  in  other  recitals  of  the  sum- 

9  Forsman  v.  Bright,  8  Colo.  467,  isKuykendall  v.  Lambert 
69  Pac.  473.                                                 (Okla.).  173  Pac.  657. 

10  Regent  Realty  Co.  v.  Armour  ^^  As  Colorado  Sess.  Laws  1891. 
Packing  Co.,  112  Mo.  App.  271.  86      P-     ^^'     bill's    Ann.    Colo.     Code, 


S.  W.  880. 


§38a. 

In    California    service    of    sum- 
11  Bond  V.  Wilson,   8  Kan.   228,      ^^^^  ^jj^  ^^^  ^^  ^^^  ^^.^^  ^^j^gg 

12  Ann.  Rep.  466.  defendant's  substantial  rights  are 

i:2Lederer    Amusement    Co.    v.      affected. — Fraser  v.  Oakdale  Land 

Pollard,  71  App.   Div.    (N.  Y.)    35,      &  W.  Co.,  73  Cal.  187,  14  Pac.  829; 

10   N.  Y.  Ann.  Cas.  481,  75  N.  Y.      McGinn  v.  Rees,  33  Cal.  App.  291, 

Supp.   619.  294,  165  Pac.  52. 

290 


Ch.  XI.]  FRAUDULENTLY   SECURING   PRESENCE.  §220 

nions,  and  the  complaint  on  file  giving  liis  name  as 
Samuel.^^  A  variance  between  the  date  of  the  original 
process  and  the  copy  of  the  summons  served,  has  been 
said  not  to  be  ground  for  quashing  the  service.^*' 

Fraudulently  inveigling  into  jurisdiction  of  court,^'  for 
the  purpose  of  securing  service  of  process  upon  the  per- 
son within  that  jurisdiction,  the  service  of  the  summons 
will  be  set  aside  ;^'*  but  on  motion  to  quash  ser\'ice  on  this 
ground,  issue  being  joined  as  to  whether  fraud  was  com- 
mitted, a  full  hearing  given  to  the  motion  before  trial, 
there  being  testimony  for  and  against  the  contention  of 
fraud  in  procuring  the  presence  of  defendant  for  the 
purpose  of  securing  service  of  process,  and  the  motion 
being  denied,  it  was  held  not  to  be  error  to  refuse  to 
reopen  the  issue  and  allow  the  testimony  in  favor  of  the 
motion  to  be  submitted  to  the  jury.^'* 

§229. Service  by  publication.     Where  the 

service  of  process  is  made  by  publication  of  the  summons 
against  a  nonresident  defendant,  the  affidavit  for  order 
of  publication,  the  order  of  publication,  and  the  publica- 
tion of  the  sunomons,  may  all  be  attacked  by  a  motion  to 
quash  or  set  aside.  The  procedure  required  by  the  stat- 
ic; Rich  V.  Collins,  12  Colo.  App.  Summons  served  on  husband 
511,  56  Pac.  207.  while  attending  court  in  another 
10  George  v.  Fitzpatrick,  25  N.  ^^^^  between  himself  and  his  wife. 
Y.   Civ.   Proc.  Rep.   383,   41  N.   Y.      ^*^"^<^  ^'^^^   assume  defendant  had 


Supp.  211. 

17  As  to   effect  of  fraud   in  ser 


abandoned  his  wife  and  was  liv- 
ing in  another  state,  on  motion 
to  quash  or  set  aside  service  on 
vice  of  summons,  see,  ante,  §  213  ^^^xxnA  of  privilege.  —  Lemberger 
and   §  226,   footnote  9.  v.  Lemberger,  164  N.  Y.  Supp.  555. 

IS  Van    Horn   v.   Great   Western  lo  Conrath  v.  Johnston,  36  Okla. 

Mfg.  Co.,  37  Kan.  523,  15  Pac.  562;       425,   128   Pac.   1088. 
Reed  v.  Williams,  29  N.  J.  L.    (5  Sending  to   referee  to  take  fur- 

Dutch)  385;  Carpenter  v.  Spooner,  ther  proof  where  question  in- 
4  N.  Y.  Super.  Ct.  Rep.  (2  Sandf.)  volved  fully  presented  by 
717;  Graves  v.  Graham,  19  Misc.  affidavits,  held  to  be  error. — 
(N.  Y.)  618,  44  N.  Y.  Supp.  415,  Bucholtz  v.  Florida  East  Coast  R. 
affirming  18  Misc.  752,  43  N.  Y.  Co..  59  App.  Div.  (N.  Y.)  566,  69 
Supp.  510.  N.  Y.   Supp.  682, 

291 


§  230  CODE  PLEADING  AND  PRACTICE.  [Pt.  1, 

ute  for  service  by  publication  must  be  strictly  pursued, 
being  in  derogation  of  the  common  law/  and  where  the 
method  prescribed  is  not  followed  in  the  publication  of 
the  summons,  the  service  will  be  set  aside  on  motion  ;- 
but  where  the  order  of  publication  was  duly  and  regularly 
procured,  it  will  not  be  disturbed  on  setting  aside  a 
defective  publication.^  An  affidavit  for  service  of  process 
by  publication  will  be  quashed  where  it  is  shown  that  the 
defendant  is  a  resident  of  the  state  ;^  but  where  the  plain- 
tiff was  entitled  to  service  of  process  by  publication  on  a 
ground  incidentally  mentioned  in  the  affidavit  for  the 
order  of  publication,  but  not  sufficiently  specified  as  to 
the  facts,  a  motion  to  quash  the  service  was  denied  in 
Oklahoma.^  But  where  the  affidavit  for  order  of  service 
by  publication  of  summons  against  a  nonresident  defen- 
dant contained  no  reference  to  the  defendant  whom  it 
was  attempted  to  so  serve,  the  service  was  set  aside.®  The 
length  of  time  for  appearance  and  answer  contained  in 
the  summons  published  being  greater  than  the  time  speci- 
fied in  the  statute,  will  not  furnish  ground  for  quashing 
the  service."^  The  fact  that  the  complaint  in  an  action  in 
which  the  service  is  made  upon  a  nonresident  defendant 
by  publication  joins  claims  purely  personal  with  claims 
affecting  real  property,  will  furnish  ground,  where  the 
objection  is  timely  taken, ^  for  setting  aside  the  service.^ 

§  230.  Amendment  of  defects — In  pkocess.  A  juris- 
dictional  process,   commencing   an   action,    can   not   be 

1  See,  supra,  §193.  93  U.  S.  163,  167,  23   L.  Ed.  858; 

2  Whiton  V.  Morning  Journal  Chamberlain  v.  Bittershon,  48  Fed. 
Assoc,  23  Misc.  (N.  Y.)  229,  27  1^;  Stone  v.  Speare,  175  Fed.  586. 
N  Y.  Civ.  Proc  Rep.  224,  50  N.  Y.  ^  Rawson  v.  Sherwood,  59  Kan. 
Supp.  899.  '^'^6,  53  Pac.  69. 

7  Calkins  v.  Miller,  55  Neb.  601, 
^  ^^-  ■  75  N.  W.  1108. 

4  Tolbert  v.  State  B  a  n  k.  30  g  As  to  when  objection  must  be 
Okla.  403.  121  Pac.  212.                           taken,    see,   ante.    §  225. 

5  Richardson  v.  Howard,  51  Okla.  9  Zimmerman  v.  Barnes,  56  Kan. 
240.  151  Pac.  887,  Tilton  v.  Cofield,      419,  43  Pac.  764. 

292 


ell.  XI.]  AMENDING    DEFECTS IN    PROCESS.  §  230 

amended  in  any  substantial  particular,  without  a  statute 
of  amendments  especially  authorizing  it.^  We  have  al- 
ready seen  that  in  California,  by  statutory  pro\Hsion,- 
the  process  of  the  court  is  within  its  power  and  may  be 
amended  at  any  time  pending  service,  where  there  is  an 
otherwise  valid  process  to  amend  f  and  where  the  process 
of  the  court  is  amendable  it  will  be  accorded  the  same 
effect,  in  so  far  as  acts  done  in  serving  it  are  concerned, 
as  though  it  had  been  amended.^  Under  a  statute^  con- 
ferring on  the  courts  control  over  their  process,  and 
power  to  amend  the  same  to  conform  to  law  and  justice, 
after  service  and  return  of  a  summons,  the  court  may 
order  the  writ  of  process  to  be  amended  so  as  to  conform 
with  the  requirements  of  the  statute,^  and  may  order  the 
process  as  thus  amended  to  be  withdrawn  from  the  files 
and  reserved  f  and  it  has  been  held  that  the  trial  court 
may  permit  the  process  and  the  complaint  to  be  so 
amended  as  to  show  that  the  defendant  is  sued  in  his 
individual  instead  of  in  his  representative  capacity,^  or 

1  Fisher  v.  Crowley,  57  W.  Va.  Idaho  472,  478,  125  Am.  St.  Rep. 
312,  4  Ann.  Cas.  282,  50  S.  E.  422.  175,  179,  94  Pac.  827;   Hancock  v. 

2  See  Kerr's  Cyc.  Cal.  Code  Civ.  Preuss,  40  Cal.  572;  Richmond  & 
Proc,  §  128,  par   8.  D.   R.  Co.  v.  Benson,  86   Ga.   203, 

3  See,  ante,   §  143.  ^2  Am.  St.  Rep.  446,  12  S.  E.  357; 

Passumpsic  Sav.  Bank  v.  Manlick, 
60  Nev.  469,  83  Am.  St.  Rep.  539, 
83   N.   W.    672;    Coffin  v.   Bell,   22 

5  As  California  Code  Civ.  Proc,  ^ev.  169,  58  Am.  St.  Rep.  738,  37 
§128,  par.  8;  Idaho  Rev.  Stats,  pac.  240;  Simmons  v.  Norfolk  & 
1887,  §3862;  New  York  Code  Civ.  g.  Steamboat  Co.,  113  N.  C.  147, 
Proc,  §  722,  and  similar  statutes.  37  ^m.  St.   Rep.  614,  22   L.   R.  A. 

6  Empire  Mill  Co.  v.  District  677,  18  S.  E.  117;  Miller  v.  Zeigler, 
Court,  27  Idaho  383,  149  Pac  499;  44  w.  Va.  484,  67  Am.  St.  Rep.  777, 
Empire  Mill  Co.  v.  District  Court,  29  S.  E.  981. 

27  Idaho  400,  149  Pac.  505.  s  Boyd    v.    United    States    Mort- 

May  be  amended  on  notice  after  gage  &  T.  Co.,  187  N.  Y.  262,  116 

service   and  after  defendant's  de-  Am.    St.    Rep.    599,    10    Ann.    Cas. 

fault— Sage  Inv.  Co.  v.  Haley,  59  146,  9  L.  R.  A.  (N.  S.)  399,  20  N.  Y. 

Colo.    504,   149    Pac.   437;    Gensler  Ann.   Cas.  1,   38  N.   Y.   Civ.   Proc. 

V.  Nicholas,  151  Mich.  529,  14  Ann.  Rep.  1,  79  N.  E.  999. 

Cas.   452,   115   N.  W.   458.  See,    also,    notes,    116    Am.    St. 

7  Ridenbaugh     v.     Sandlin,     14  Rep.  609;  10  Ann.  Cas.  150. 

293 


4  Brann  v.  Blum,  138  Cal.  644 
72  Pac.  168. 


§230 


CODE  PLEADING  AND  PRACTICE. 


IPt.I, 


an  amendment  by  eliminating  one  plaintiff  where  there 
are  two  distinct  causes  of  action  set  forth  in  favor  of 
different  plaintiffs  against  the  same  defendant," — e.  g., 
where  a  husband  and  wife  are  joined  in  an  action  in  a 
personal  injury  case,  one  cause  of  action  setting  out  the 
rights  of  the  husband  to  recover  and  the  other  setting  out 
the  right  of  the  wife  to  recover  for  the  same  injury;  but 
a  void  jurisdictional  process  can  not  be  amended  by  an 
order  of  the  trial  court.^^  Thus,  a  writ  of  process  without 
the  seal  of  the  court  attached  is  utterly  void,  and  can  not 
be  amended,  the  seal  being  a  constitutional  requisite  ;^^ 
but  whether  a  summons,  served  without  the  clerk's  signa- 
ture being  attached  to  the  process,  can  be  amended  or  not 
is  a  question  ujDon  which  the  decisions  are  not  harmon- 
ious, and  the  practitioner  will  have  to  adhere  to  the  rule 
announced  by  the  courts  in  his  particular  jurisdiction. 
Some  of  the  decisions  maintain  that  a  summons  without 
the  signature  of  the  clerk  of  the  court^-  is  absolutely  void 
and  unamendable,^^  while  in  other  jurisdictions  a  sum- 
mons otherwise  regular  in  form  and  sufficient  in  matter, 
not  signed  by  the  clerk,  is  not  void  and  the  defect  may  be 
corrected  by  amendment  after  service  and  return 
thereon.  ^^ 


9  Georgia  Railroad  &  Banking 
Co.  V.  Tice,  124  Ga.  459,  4  Ann. 
Cas.  200,  52   S.  E.  916. 

10  Durham  v.  Heaton,  28  III. 
264,  81  Am.  Dec.  275;  Sharman 
V.  Huot,  20  Mont.  555,  63  Am.  St. 
Rep.  645,  52  Pac.  558. 

See,    also,    supra,    §  143. 

11  Gordon  v.  Bodwell,  59  Kan. 
51,  68  Am.  St.  Rep.  346,  51  Pac. 
906. 

See,  ante,  §  143. 

12  As  to  signature  by  clerk,  see, 
ante,  §  127. 

13  Sharman  v.  Huot,  20  Mont. 
555,  63  Am.  St.  Rep.  645,  52  Pac. 
558.       See:     Stone    v.     Harris,     1 


20 


Minor  (Ala.)  32;  Rattan  v.  Stone, 
4  111.  (3  Scam.)  540;  Dwight  v. 
Merritt,  18  Blatchf.  305,  4  Fed. 
614;  Seurer  v.  Horst,  31  Minn. 
479,  18  N.  W.  283;  Gammon  v. 
Perrine,  9  N.  J.  L.  (4  Halst.)  253; 
Roberts  v.  Allman,  106  N.  C.  391, 
11  S.  E.  424;  Williamson  v.  Mc- 
Cormick,  126  Pa.  St.  274,  17  Atl. 
591;  Hickman  v.  Larckey,  6  Gratt. 
(Va.)  210;  Laidley  v.  Bright,  17 
W.  Va.  779,  791-2;  Fisher  v.  Crow- 
ley, 57  W.  Va.  312,  4  Ann.  Cas. 
282,   50   S.   E.   422. 

See,  also,  ante,  §  143. 

liAultman  &  Taylor  Mach.  Co. 
V.  Wier,  67  Kan.  674,  74  Pac.  227, 
1 


ch.  XI.] 


AMENDING   RETURN   OF   SERVICE. 


§231 


A  mere  clerical  error,  apparent  from  tlie  face  of  the 
record,  such  as  a  mistake  in  the  date  of  the  return-day,^-' 
for  the  sheriff,  or  the  answer-day  for  the  defendant,  may 
be  corrected  by  amendment  by  the  court  at  any  time,^" 
even  though  an  objection  to  the  jurisdiction  of  the  court, 
based  on  the  defect,  has  been  taken  and  is  at  the  time 
pending  for  hearing.''^  But  where  a  defendant  is  served 
under  a  wrong  name,  an  amendment  of  the  summons, 
after  service  and  return,  by  substituting  his  correct  name, 
will  not  confer  jurisdiction  on  the  court  over  the  person 
of  the  defendant. ^^ 


^231. 


To  RETURN  OF  SERVICE  OF  PROCESS In  GEN- 


ERAL. To  support  a  judgment  by  default  against  a  per- 
son named  as  a  defendant  who  has  not  appeared  and 
answered,  there  must  have  been  not  only  a  legal  and 
sufficient  service  of  process  upon  such  defendant,^  but  a 


approving  and  following  Furman 
V.  Easterly,  36  Kan.  539,  13  Pac. 
824.  See:  Taylor  v.  Buck,  61  Kan. 
694,  78  Am.  St.  Rep.  346,  60  Pac. 
736;  Austin  v.  Lamar  Fire  Ins. 
Co.,  108  Mass.  338;  Pepoon  v. 
Jenkins,  1  Colm.  Cas.  (N.  Y.)  55, 
1  Colm.  &  C.  Cas.  60;  Ambler  v. 
Leach,  15  W.  Va.  677. 

15  Return-day  for  sheriff  thirty 
days  too  long. — Alford  v.  Hoag,  8 
Kan.  App.  141,  54  Pac.  1105. 

ic  Alford  V.  Hoag,  8  Kan.  App. 
141,  54  Pac.  1105;  Barker  Co.  v. 
Western  Inv.  Co.,  75  Neb.  43,  105 
N.    W.    985. 

17  "When  the  mistake  in  the 
date  was  called  to  the  attention 
of  the  court  by  the  motion  to 
amend,  the  objection  to  the  juris- 
diction being  still  pending  before 
the  court,  it  was  within  the  power 
and  discretion  of  the  court  to 
permit  the  amendment  to  be 
made." — Barker    Co.    v.    Western 


Inv.  Co.,  75  Neb.  43,  105  N.  W. 
985,  citing  Fisher  v.  Collins,  25 
Ark.  97;  Richmond  &  D.  R.  Co.  v. 
Benson,  86  Ga.  203,  22  Am.  St. 
Rep.  446,  12  S.  E.  357;  Hamilton 
V.  Ingraham,  121  Mass.  562;  Kidd 
V.  Dougherty,  50  Mich.  24,  26  N. 
W.  510;  Kelly  v.  Harrison,  69 
Miss.  856,  12  So.  261. 
•  IS  Union  Pac,  D.  &  G.  R.  Co. 
V.  Perkins,  7  Colo.  App.  184,  42 
Pac.   1047. 

1  Stubbs  V.  McGillis,  44  Colo. 
138,  130  Am.  St.  Rep.  116,  IS  L.  R. 
A.  (N.  S.)  405,  96  Pac.  1005: 
Albright-Pryor  Co.  v.  Pacific  Sell- 
ing Co.,  126  Ga.  498,  115  Am.  St. 
Rep.  108,  55  S.  E.  251.  See:  Great 
Western  Min.  Co.  v.  Woodmas  of 
Alston  Min.  Co.,  14  Colo.  90,  23 
Pac.  908;  Du  Bois  v.  Clark,  12 
Colo.  App.  220,  55  Pac.  750;  Smith 
V.  Morrill,  12  Colo.  App.  233,  55 
Pac.  824;  Kelly  v.  East  Side  Imp. 
Co.,  16  Colo.  App.  365,  65  Pac. 
456. 


295 


§231 


CODE  PLEADING  AND  PRACTICE. 


[Ft.  1, 


legal  and  sufficient  return  of  service  of  process  as  well.- 
A  return  to  a  service  of  process  is  presumed  to  speak  the 
truth  as  to  the  facts  as  they  existed  at  the  time  of  making 
the  same,^  relative  to  the  acts  of  the  officer  serving  the 
process,  and  whenever,  by  reason  of  clerical  error  or 
mistake  or  inadvertence,  the  return,  as  made,  is  erroneous 
as  to  the  facts,  it  may  be  amended  or  corrected  (1)  by  the 
officer  before  filing,  A^dthout  leave  of  the  court,  because 
until  the  return  is  actually  filed  in  court  it  is  under  the 
absolute  control  of  the  officer  making  the  service,*  and 
(2)  after  filing  of  the  return,  by  leave  of  court  first  ob- 
tained, on  application  of  the  officer,^  even  though  applica- 


2  Albright-Pryor  Co.  v.  Pacific 
Selling  Co.,  126  Ga.  498,  115  Am. 
St.  Rep.  108,  55  S.  E.  251.  See 
Wood  V.  Galloway,  49  Ga.  801,  47 
S.  E.  178,  and  cases  cited. 

3  Return  presumed  to  be  true, 
until  the  falsity  of  it  be  proved. 
— Purington  v.  Loring,  7  Mass. 
388. 

Presumption  of  service  of  pro- 
cess on  foreign  corporation  does 
not  arise  from  personal  service  of 
process  within  the  state  upon  the 
president  of  the  corporation, 
where  such  corporation  confines 
its  operations  to  the  state  creat- 
ing it. — Knapp  v.  Wallace,  50  Ore. 
348,  126  Am.  St.  Rep.  742,  92  Pac. 
1054. 

Presumption  does  not  apply  to 
supply  jurisdictional  facts  which 
the  return  of  process  must  show. 
—Shenandoah  Valley  R.  Co.  v. 
Ashby's  Trustees,  86  Va.  232,  19 
Am.  St.  Rep.  898,  9  S.  E.  1003. 

4  Nelson  v.  Cook,  19  111.  440; 
Wilcox  V.  Moudy,  89  Ind.  232, 
234;  Welsh  v.  Joy,  30  Mass.  (13 
Pick.)  477;  Watson  v.  Toms,  42 
Mich.  561;  Cochrane  v.  Johnson, 
95  Mich.  67,  54  N.  W.  707;  Dixon 
V.  White   Sewing  Mach.   Co.,   128 


Pa.  St.  397,  407,  15  Am.  St.  Rep. 
683,  18  Atl.  502;  Miller  v.  Alex- 
ander, 13  Tex.  497,  65  Am.  Dec.  78. 

5  Allison  V.  Thomas,  72  Cal.  562, 
564,  1  Am.  St.  Rep.  89,  14  Pac. 
318;  Newman,  In  re,  75  Cal.  213, 
220,  7  Am.  St.  Rep.  150,  16  Pac.  887 
(amendment  of  afiidavit  of  service 
by  publication) ;  Jones  v.  Gunn, 
149  Cal.  687,  693,  87  Pac.  577,  579; 
Golden  Paper  Co.  v.  Clark,  3  Colo. 
321;  Jeffries  v.  Rudloff,  73  Iowa 
60,  5  Am.  St.  Rep.  654,  34  N.  W. 
756;  Kirkwood  v.  Reedy,  10  Kan. 
453;  Wilkins  v.  Tourtelbott,  28 
Kan.  825;  Jordan  v.  Johnson,  1 
Kan.  App.  656,  42  Pac.  415; 
Hutchins  v.  Carver,  16  Minn.  13; 
Shufeldt  v.  Barlass,  33  Neb.  785, 
51  N.  W.  134;  Elder  v.  Frevert,  18 
Nev.  278,  3  Pac.  237;  Green  v. 
Cole,  55  N.  C.  (13  Ired.  L.)  425; 
Mills  v.  Rowland,  2  N.  D.  30,  49 
N.  W.  413;  Weaver  v.  Southern 
Oregon  Co.,  30  Ore.  348,  48  Pac 
171;  Tilton  v.  Cofield,  93  U.  S. 
163,  167,  23   L.   Ed.  858. 

Amendment  without  leave  of 
court,  four  months  after  decree 
based  on  service  by  publication 
wherein  the  afiidavit  of  mailing 
was  insufficient  to  confer  jurisdic- 


296 


ell.  XL] 


AMENDING  RETURN   OF   SERVICE. 


§231 


tion  is  made  after  the  officer  has  gone  out  of  office,^  where 
the  acts  done  by  the  officer  and  the  service  of  the  process 
were  sufficient  to  give  the  court  jurisdiction  of  the  person 
of  the  defendant/  Applications  to  the  trial  court  for 
leave  to  amend  the  return  to  the  service  of  process,  in 
order  that  such  return  may  conform  to  the  requirements 
of  the  law  or  to  the  facts  in  the  case,  are  usually  treated 
with  liberality,  so  as  to  make  the  return  correspond  to  the 
true  state  of  facts, ^  although  such  amendments  rest  in  the 


tion  on  the  court,  the  amendment 
consisting  of  a  new  affidavit  of 
mailing,  there  being  on  file  no 
affidavit  showing  facts  upon  which 
to  base  an  order  for  amendment, 
such  amended  return  is  insuf- 
ficient to  confer  jurisdiction  on 
the  court  and  validate  the  decree. 
— Knapp  v.  Wallace,  50  Ore.  348, 
126  Am.  St.  Rep.  742,  92  Pac.  1054. 

6  Pacific  Postal  Tel.  Cable  Co. 
V.  Fleischner,  66  Fed.  899,  905. 

See,  also,  post,  §  235,  footnotes 
19  et  seq.  and  text. 

7  Allison  V.  Thomas,  72  Cal.  562, 

I  Am.  St.  Rep.  89,  14  Pac.  318; 
Call  V.  Rocky  Mountain  Bell  Tel. 
Co.,  16  Idaho  556,  133  Am.  St.  Rep. 
135,  102  Pac.  146. 

8  See:  CAL.— Borland  v.  O'Neal, 
22  Cal.  504;  Gavitt  v.  Doub,  23  Cal. 
78,  81;  Rousset  v.  Boyle,  45  Cal. 
64;  Hewell  v.  Lane,  53  Cal.  217; 
Allison  v.  Thomas,  72  Cal.  562,  1 
Am.  St.  Rep.  189,  14  Pac.  309; 
People  v.  Goldenson,  76  Cal.  328, 
345,  19  Pac.  161.  COLO.— Golden 
Paper  Co.  v.  Clark,  3  Colo.  321; 
McClure  v.  Smith,  14  Colo.  297, 
301,  23  Pac.  786.  IOWA— Irons 
V.  Keystone  Mfg.  Co.,  61  Iowa  406 
408,  16  N.  W.  349.  KAN.— Stet 
son  V.  FVeeman,  35  Kan.  528,  531 

II  Pac.  431.  MD.— Berry  v.  Grif 
fith,    1    Harris   &    G.    337,    IS    Am 


Dec.  309.  MO. — Crocker  v.  Mann, 
3  Mo.  472,  26  Am.  Dec.  684. 
N  E  B.— Shufeldt  v.  Barlass,  33 
Neb.  785,  51  N.  W.  134;  Witts- 
truck  V.  Temple,  58  Neb.  18,  78 
N.  W.  456.  N.  H.  — Parker  v. 
Barker,  43  N.  H.  35,  80  Am,  Dec. 
130.  N.  C— Stealman  v.  Green- 
wood, 113  N.  C.  355,  18  S.  E.  503. 
N.  D.— Mills  v.  Rowland,  2  N.  D. 
30,  49  N.  W.  413.  ORE.— Weaver 
V.  Southern  Oregon  Co.,  33  Ore. 
348,  48  Pac.  171.  PA.— Com.  v. 
Chauncey,  2  Ashm.  99;  Dewar  v. 
Spencer,  2  Whart.  211,  30  Am.  Dec. 
241;  Rudy  v.  Com.,  35  Pa.  St.  166, 
78  Am.  Dec.  330.  VA.— Shenan- 
doah Valley  R.  Co.  v.  Ashby's 
Trustees,  86  Va.  232,  19  Am.  St. 
Rep.  891,  9  S.  E.  1003.  W.  VA.— 
McCormick  v.  Southern  Ex. 
Co.,  93  S.  E.  1048.  FED.— Rickards 
V.  Ladd,  6  Sawy.  40,  46,  Fed.  Cas. 
No.  11804. 

Amendment  to  material  fact  in 
return,  allowed  when  satisfac- 
torily proved  that  the  proposed 
recital  in  the  amended  return  was 
a  fact. — Chase  v.  Merrimac  Bank, 
36  Mass.  (19  Pick.)  564,  31  Am. 
Dec.  163. 

Sheriff's  duty  to  correct  return 
so  that  it  shall  speak  the  truth.— 
Berry  v.  Griffith,  1  Harris  &  G. 
(Md.)  337,  18  Am.  Dec.  309. 


29' 


§231 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  1, 


sound  judicial  discretion  of  the  trial  court,  and  may  be 
allowed  or  disallowed  as  may  best  tend  to  the  furtherance 
of  justice,'^  and  will  be  denied  where  the  proposed  amend- 
ment will  work  injury.^"  Thus,  in  a  recent  case  in  Cali- 
fornia it  was  held  that  where  an  action  is  brought  against 
fictitious  persons,  or  against  actual  persons  in  fictitious 
names,  service  of  process  made  on  persons  not  named  in 
the  process  or  in  the  complaint,  and  judgment  is  entered, 
by  default,  against  the  persons  served,  without  amend- 
ment, it  is  the  duty  of  the  trial  court,  on  motion  of  the 
plaintiff,  to  thereafter  permit  the  return  to  the  process 
to  be  so  amended  as  to  show  that  the  persons  served  were 
the  persons  sued  under  the  fictitious  names. ^^  But  an 
amendment  to  a  return  to  the  service  of  process  that  may 
affect  injuriously  the  rights  of  third  persons,  can  be 
allowed  only  in  those  cases  where  there  is  something  in 
the  record  by  which  the  amendment  or  correction  can  be 
made.^-    An  officer  can  not  be  permitted  to  so  amend  a 


Return  by  deputy-sheriff,  not 
signed  in  sheriff's  name  is  void- 
able, not  void,  and  is  amendable. 
— Dewar  v.  Spencer,  2  Whart. 
(Pa.)  211,  30  Am.  Dec.  241;  Com. 
V.  Chauncey,  2  Ashm.  (Pa.)  99; 
Rudy  V.  Com.,  35  Pa.  St.  166,  168, 
78  Am.  Dec.  330. 

9  Jackson  v.  Esten,  83  Me.  162, 
23  Am.  St.  Rep.  765,  21  Atl.  830. 

See,  also,  cases  in  next  footnote. 

10  Freeman  v.  Paul,  3  Me.  (3 
Greenl.)  260,  14  Am.  Dec.  237; 
Thatcher  v.  Miller,  13  Mass.  270; 
Kahn  v.  Mercantile  Town  Mut. 
Ins.  Co.,  228  Mo.  585,  137  Am.  St. 
Rep.  665,  128  S.  W.  995;  West 
Mountain  Lime  &  Stone  Co.  v. 
Danley,  38  Utah  218,  111  Pac.  647. 

Denial  of  amendment  of  return 
as  to  the  name  of  the  person 
served,  is  not  an  abuse  of  judicial 
discretion. —  Stubbs  v.  McGillis,  44 


Cal.  138,  130  Am.  St.  Rep.  116,  18 
L.  R.  A.  (N.  S.)  405,  96  Pac.  1005. 
No  rights  of  third  persons  hav- 
ing intervened,  amendment  may 
be  allowed. — West  Mountain  Lime 
&  Stone  Co.  v.  Danley,  38  Utah 
218,  111  Pac.  647. 

11  McGinn  v.  Rees,  33  Cal.  App. 
291,  165  Pac.  52,  citing  Herman 
V.  Santee,  103  Cal.  519,  42  Am.  St. 
Rep.  145,  37  Pac.  509;  Morrissey 
V.  Gray,  160  Cal.  390,  117  Pac.  438. 

Criticism  of  doctrine,  post,  §  233, 
footnote  12. 

Criticism  of  iVIorrissey  v.  Gray, 
post,  §  234. 

12  Fairfield  v.  Paine,  23  Me.  498, 
41  Am.  Dec.  357. 

As  to  limitation  on  rule  as  to 
amendments  where  intervening 
rights  of  third  persons  are  ad- 
versely affected,  see,  post,  §  232. 

IVIust  appear  upon  face  of  writ 
or  return  that  the  proposed  amend- 


29S 


i 

I 


ell.  XI. J 


AMENDMENT .J  IMnSDKTlON  Al.    DKKECTS. 


§  2  51 


return  to  service  of  a  process  as  to  reiuler  it  contrary  to 
his  former  return  on  record/^  or  to  contradict  or  invali- 
date such  former  return  under  oath  J*  An  amendment  to 
a  return  of  process  has  reference  to  the  state  of  facts  at 
the  time  of  service/^  and  relates  back  to  and  becomes  a 
part  of  the  original  return,  and  may.  lor  that  reason,  give 
validity  to  a  judgment  which,  but  for  such  amendment, 
would  be  treated  as  void,^*' 

Defects  jurisdictional,^'^  the  court  acquires  no  jurisdic- 
tion over  the  person  of  the  defendant,  and  the  return  can 
not  be  amended,  even  by  permission  and  with  the  consent 
of  the  trial  court, ^^  because  the  court,  not  having  acquired 
jurisdiction  of  the  defendant,  has  no  power  to  entertain 
or  act  on  the  application  to  amend, ^'^  further  than  to  deny 
the  application ;  and  also  for  the  further  fact  that  there  is 
nothing  to  amend,  because  the  service  of  a  process  juris- 
dictionally  defective, — e.  g.,  where  made  out  of  the  juris- 
diction of  the  officer  serving, — is  void.-" 


ment  would  be  proper. — Parker  v. 
Barker,  43  N.  H.  35,  80  Am.  Dec. 
130. 

13  Wyer  v.  Andrews,  13  Me.  168, 
29  Am.  Dec.  497. 

14  Id. 

isMalone  v.  Samuel,  10  Ky.  (3 
A.  K.  Marsh.)  350,  13  Am.  Dec. 
172. 

i«  Woodward  v.  Harbin,  4  Ala. 
534,  37  Am.  Dec.  753;  Kahn  v.  Mer- 
cantile Town  Mut.  Ins.  Co.,  228 
Mo.  585,  137  Am.  St.  Rep.  665,  128 
S.  W.  995;  Dorr  v.  Rohr,  82  Va. 
359,  3  Am.  St.  Rep.  106;  Shenan- 
doah Valley  R.  Co.  v.  Ashby's 
Trustees,  86  Va.  232,  19  Am.  St. 
Rep.  898,  9  S.  E.  1003;  McClure- 
Mahie  Lumber  Co.  v.  Brooks,  46 
W.  Va.  732,  34  S.  E.  921. 

See,  also,  note,  13  Am.  Dec.  180, 
181. 

As  to  amendment  after  judg- 
ment, see,  post,  §  235. 


1"  As  to  jurisdictioial  defects, 
see,  ante,  §  38. 

Deputy's  return  in  own  name 
and  not  in  name  of  sheriff  by  him, 
is  a  nullity. — Reinhart  v.  Lugo,  86 
Cal.  395,  21  Am.  St.  Rep.  52,  24 
Pac.  1089. 

Signature  to  return  without 
official  title  or  designation,  and 
not  sworn  to  is  a  nullity,  and  can 
not  be  validated  by  proving  that 
the  person  signing  the  return  was 
a  deputy-sheriff. — R  ei  n  h  a  r  t  v. 
Lugo,  86  Cal.  395,  21  Am.  St.  Rep. 
52,  24  Pac.  1089. 

IS  See,  in  this  connection,  dis- 
cussion in  §  143,  ante. 

10  See,  ante,  §§  39,  118. 

20  There  must  be  something  in 
the  record  to  amend  by. — Bernard 
V.  Stevens,  2  Aik.  (Vt.)  429,  10 
Am.   Dec.  733. 


299 


§§  232, 233  CODE  pleading  and  practice.  [Pt.  I, 

<§i  232. Limitation  on  rule.  In  most  juris- 
dictions there  is  a  limitation  placed  upon  the  general  rule 
as  to  allowance  of  amendments  to  return  of  process,  con- 
fining such  amendments  to  the  original  parties  to  the 
action,  and  denying  amendment  in  those  cases  in  which 
the  intervening  interests  of  innocent  third  parties  would 
be  adversely  affected.^  Thus,  it  is  held  in  California  that 
after  the  lapse  of  the  period  for  redemption,  the  court 
has  no  jurisdiction  to  permit  the  sheriff  to  so  amend  his 
return  to  the  writ  of  process  as  to  validate  a  sale  other- 
wise invalid.-  On  the  other  hand  there  are  cases  to  the 
effect  that  the  courts  have  power  to  amend  their  process 
and  records,  notwithstanding  the  fact  that  existing  rights 
may  be  affected.^ 

§  233. Character  and  scope  of  amendment. 

Amendments  may  be  allowed  which  are  necessary  to 
make  the  return  conform  to  the  true  state  of  facts  at  the 
time  of  the  return  and  necessary  to  show  the  acts  and 
things  actually  done  by  the  officer  making  the  ser\ice  of 
the  process,^  where  the  intervening  rights  of  third  per- 
sons will  not  be  adversely  affected,-  and  manifest  injustice 
will  not  be  done  thereby.^  Such  amendment  must  con- 
form to  the  true  state  of  facts,  and  show  the  whole  truth.^ 
The  amendment  must  be  confined  to  things  wdthin  the 

1  Newhall  v.  Provost,  6  Cal.  85;  v.  Edwards,  5  Sawy.  266,  274,  Fed. 

Johnson   v.   Wilmington    &    N.   C.  Cas.  No.  5098;    Rickards  v.  Ladd, 

Electric  R.  Co.,  1  Penn.  (Del.)  87,  6    Sawy.    40,    45,    Fed.    Cas.    No. 

39  Atl.  777;   Tewalt  v.  Irwin,  164  11804. 

111.   592,   46  N.   E.   13;    Glidden   v.  2  McGrath  v.  Wallace,   116   Cal. 

Philbrick,  56  Me.  222;   Milliken  v.  548,    553,   48   Pac.   719. 

Bailey,  61  Me.  316;  Bessey  v.  Vose,  3  Tilton  v.  Cofleld,  93  U.  S.  163, 

73  Me.  217;  Berry  V.  Spear,  75  Me.  23    L.    Ed.    858.      See   Jackson    v. 

35;    Main  v.   Lynch,   54   Md.    664;  Esten,  83  Me.  162,  23  Am.  St,  Rep. 

Emerson   v.    Upton,    26    Mass.    (9  765,   21  Atl.   830. 

Pick.)    157;    Howard  v.  Priestley,  i  See,  ante,  §231. 

58  Miss.  21;   Ohio  Life  Ins.  Co.  v.  2  See,  ante,  §  232. 

Urbana    Ins.    Co.,    13    Ohio    227 ;  3  Clayton   v.    State,    24   Ark.   16. 

Harry  v.  Hovey,  30  Ohio  St.  344;  4  Wolcott   v.    Ely,    84    Mass.    (2 

Hass  V.  Sedlak,  9  Ore.  462;  Ftench  Allen)   338. 

300 


Ch.  XI.]  AMENDMENT — CHARACTER   AND   SCOPE.  §  233 

personal  knowledge  of  the  officer,^  and  to  acts  done  by 
him  at  the  time  and  in  the  capacity  in  which  he  was  acting. 
Thus,  where  an  officer  occupying  a  dual  capacity  or  posi- 
tion,— e.  g.,  special  constable,  with  restricted  powers,  and 
town  marshall,  with  general  powers, — he  can  not  be  per- 
mitted to  amend  a  return  made  in  a  capacity  in  which  he 
had  no  power  to  make  the  service  of  the  process,  to  the 
capacity  in  which  he  had  power  to  make  it.^  Among  the 
particulars  in  which  amendments  may  be  made  to  show 
the  true  state  of  facts  are : 

Method  of  service,  where  not  sufficiently  shown  by  the 
return,  the  return  may  be  amended  according  to  the  fact, 
where  the  process  w^as  in  fact  served ;'''  as  by  showing  that 
a  substituted  service  of  a  summons  was  made  on  the 
defendant,  by  leaving  a  copy  thereof  at  his  usual  place 
of  residence,  with  a  member  of  his  family.^ 

Date  on  which  service  of  process  made  inadvertently 
omitted,^  or  inaccurately  stated,  on  leave  of  the  trial  court 
first  obtained,  the  return  may  be  amended,  or  corrected, 
by  showing  the  date  of  the  service,  or  the  correct  date  of 
the  service.^*^ 

5  See,  post,  §  236.  lo  F^rst  Nat.   Bank  v.   Ellis,    27 

6  See:  Anthanissen  v.  Bruns-  Okla.  699,  Ann.  Cas.  1912C,  687, 
wick  &  S.  A.  Steam  Towing  &  114  Pac.  620;  Lee  v.  State,  47  Okla. 
Wrecking  Co.,  92  Ga.  409,  17  S.  738,  150  Pac.  665.  See:  Furr  v. 
E.  951;  Mitchell  v.  Shaw,  53  Mo.  Bank  of  Fairmount,  139  Ga.  815. 
App.  652.  78  S.  E.  181;   Under  v.  Crawford, 

7  Allison  V.  Thomas,  72  Cal.  562,  95  111.  App.  183;  Cobb  v.  New- 
1  Am.  St  Rep.  89,  14  Pac.  309;  comb,  7  Iowa  43;  O'Hara  v.  Inde- 
Golden  Paper  Co.  v.  Clark,  3  Colo,  pendence  Lumber  «6;  Imp.  Co.,  42 
321;  Jackson  v.  Ohio  &  M.  R.  Co.,  La.  Ann.  226,  7  So.  533;  Haven 
15  Ind.  192;  Armond  v.  Adams,  25  v.  Snow,  31  Mass.  (14  Pick.)  28; 
Ind.  455;  Wilkins  v.  Tourtellot,  28  Johnson  v.  Day,  34  Mass.  (17 
Kan.  825;  Howard  v.  Priestley,  58  Pick.)  106;  Heymes  v.  Champlin, 
Miss.  21;  Crocker  v.  Mann,  3  Mo.  52  Mich.  25,  17  N.  W.  226;  Snyder 
472,  26  Am.  Dec.  684;  Northrup  v.  v.  Schram,  59  How.  Pr.  (N.  Y.) 
Shephard,  23  Wis.  513.  404;    Williams  v.  Weaver,   101   N. 

s  Crocker  v.  Mann,  3  Mo.  472,  C  1,  7  S.  E.  565;  Payne  v.  Long- 
26  Am.  Dec.  684.  Bell  Lumber  Co.,  9  Okla.  683,   60 

oLee  V.  State,  47  Okla.  738,  150  Pac.  235;  Osborne  v.  Hughey,  14 
Pac.  665.  Okla.    29,    76    Pac.    146;    White    v. 

301 


§233 


CODE   PLEADING    AND   PRACTICE. 


[Pt.  1, 


Time  of  return  being  wrong, — e.  g.,  when  made  during 
vacation  of  the  court, — the  process  being  properly  and 
regularly  issued  and  duly  and  legally  served,  an  amend- 
ment may  be  allowed  nunc  pro  tunc  at  the  ensuing  ses- 
sion of  the  court.^^ 

Identity  of  defendant  sued  mth  the  person  served, 
where  defendant  sued  in  a  fictitious  name,  may  be  shown 
by  an  amendment  to  the  return  of  service  of  process,  has 
recently  been  held  in  California,^^  but  this  doctrine  is  open 
to  serious  doubt. 

Name  of  defendant  served  incorrectly  given,^^  or  where 
the  return  fails  properly  to  show  the  person  upon  whom 
sel'^dce  was  made,  upon  leave  of  court  first  duly  obtained, 
the  return  may  be  amended  to  show  the  true  name,^^  in 
accordance  \\dth  the  actual  facts  ;^^  but  the  officer  making 
service  of  process  may  not  be  permitted,  by  amendment 
of  the  return,  to  substitute  one  person  for  another  person, 
as  the  party  on  whom  the  service  was  made,^^  notmth- 
standing  a  holding  in  California  to  the  contrary,  permit- 
ting deputy  sheriff,  by  oath,  to  change  the  defendant 
served  from  individual  to  representative  capacity.^'^ 


Ladd,  34  Ore.  422,  56  Pac.  515; 
Foster  v.  Crawford,  57  S.  C.  551, 
36  S.  E.  5. 

11  Johnson  v.  Wilmington  &  N. 
Electric  R.  Co.,  1  Penn.  (Del.)  87, 
39   Atl.   777. 

12  See,  ante,  §  231,  footnote  11, 
and  text  going  therewith. 

The  soundness  of  this  doctrine 
may  well  be  questioned.  Where 
the  attorney  for  the  plaintiff  does 
not  know  the  name  of  the  person 
whom  he  is  suing  and  has  to  sue 
him  by  a  fictitious  name,  how  can 
a  ministerial  officer  serving  the 
process  be  presumed  to  have  any 
more  definite  knowledge  of  iden- 
tity? 

i."  Marsh  v.  Phillips,  77  Ga.  436; 


Alford  v.  Hoag,  8  Kan.  App.  141, 
54  Pac.  1105;  Frost  v.  Paine,  12 
Me.  111. 

14  Cleveland  v.  Pollard,  37  Ala. 
556;  McKane  v.  Democratic  Com- 
mittee, 21  Abb.  Pr.  N.  C.  89,  14 
N.  Y.  Civ.  Proc.  Rep.  126,  1  N.  Y. 
Supp.  580. 

15  Gaff  V.  Spellmeyer,  13  111.  App. 
294;  affirmed,  112  m.  29,  1  N.  E. 
170;  Wilkins  v.  Tourtellot,  28  Kan. 
825;  Louisville,  H.  &  St.  L.  R.  Co. 
V.  Com.,  104  Ky.  35,  46  S.  W.  207; 
Phillips  V.  Evans,  64  Mo.  17. 

16  Union  Pac,  D.  &  G.  R.  Co.  v. 
Perkins,  7  Colo.  App.  184,  42  Pac. 
1047. 

17  Morrissey  v.  Gray,  discussed, 
post,  §  234. 


302 


ch.  XI.] 


DEFECTS   IN   RETURN — AMENDING. 


§233 


Return  made  hy  deputy  in  his  o^\ti  name  instead  of  in 
the  name  of  the  sheriff,  his  principal,^ ^  on  leave  of  the 
court,  the  return  may  be  amended  by  making  the  return 
in  the  name  of  the  sheriff,  by  such  deputy.^^ 

Retiiru  not  sif/iied  is  a  mere  irregularity-^  which  does 
not  render  the  return  ipso  facto  void,-^  and  where  there 
are  memoranda  made  on  the  writ  of  process  at  the  time 
of  service  by  means  of  which  it  can  be  perfected,  the 
return  may  be  amended  by  the  officer  signing  such  re- 
turn,22  even  after  a  lapse  of  six  years,-=^  and  when  the 
sheriff,  or  other  officer  serving  the  process,  is  out  of 
office.^* 

Failure  to  make  any  return  to  the  service  of  a  writ  of 
process  has  been  said  not  to  be  fatal  to  the  jurisdiction 
of  the  court,  to  be  a  defect  of  form  merely  and  not  of 
substance,  and  that  the  court,  at  the  trial,  should  allow 


IS  First  Nat.  Bank  v.  Ellis,  27 
Olda.  699,  Ann.  Cas.  1912C,  687, 
114    Pac.   620. 

"In  the  absence  of  any  statute 
fixing  the  fornn  of  return,  or  of 
any  showing  of  prejudice  to  the 
defendant  or  party  served,  a  re- 
turn made  by  a  deputy-sheriff  in 
his  own  name  on  a  summons 
would  not  be  void,  so  as  to  re- 
quire the  reversal  of  a  judgment, 
but  that,  if  it  were  otherwise,  it 
would  be  subject  to  amendment. 
A  number  of  courts,  where  the 
question  has  been  presented,  have 
so  held." — Id.,  citing  Bean  v.  Haf- 
fendorfer,  84  Ky.  685,  2  S.  W.  556, 
3  S.  W.  138;  Calender  v.  Olcott, 
1  Mich.  344;  Wheeler  v.  Wilkins, 
19  Mich.  78;  Stole  v.  Padley,  98 
Mich.  13,  56  N.  W.  1042;  Kelly  v. 
Harrison,  69  Miss.  856,  12  So.  261; 
Ford  v.  De  Villers,  2  McC.  L.  (S. 
C.)  144;  Miller  v.  Alexander,  13 
Tex.  497,  65  Am.  Dec.  73;  Eastman 
v.  Curtis,  4  Vt.  616. 


See,  also,  authorities  in  foot- 
note 10,  this  section. 

Mere  irregularity  where  a 
deputy-sheriff  returns  service  in 
his  own  name  (Hill  v.  Gordon,  45 
Fed.  276),  not  affecting  the  juris- 
diction of  the  court  over  the  per- 
son of  the  person  served. — Kelly 
v.  Harrison,  69  Miss.  856,  12  So. 
261. 

19  See  authorities  in  footnote 
10,  this  section. 

20  Dewar  v.  Spencer,  2  Whart. 
(Pa.)  211,  30  Am.  Dec.  241. 

21  See:  Com.  v.  Chauncey,  2 
Ashm.  (Pa.)  99;  Dewar  v.  Spencer, 
2  Whart.  (Pa.)  211,  30  Am,  Dec. 
241;  Rudy  v.  Com.,  35  Pa.  St.  166, 
78  Am.  Dec.  330. 

i;-'  Adams  v.  Robinson,  18  Mass. 
(1  Pick.)   461. 

See,  ante,  §  231,  footnote  5. 

•J'!  Thatcher  v.  Miller,  11  Mass. 
413,  13  Mass.  270. 

24  Adams  v.  Robinson,  IS  Mass. 
(1  Pick.)   461. 


303 


§  234  CODE  PLEADING  AND  PEACTICE.  [Pt.  I, 

the  return  to  be  made.^^    This  doctrine  is  based  upon  the 
assumption  that  a  due  and  legal  service  was  in  fact  made. 

<§.  234. Jurisdiction  can  not  be  con- 
ferred BY  AMENDMENT.  The  sole  object  of  allomng 
amendments  to  returns  of  service  of  process  is  to  cure 
irregularities  and  omissions  in  such  returns,  to  record 
correctly  the  actual  state  of  facts  at  the  time  of  the 
return,  not  to  introduce  new  conditions  or  a  differ- 
ent state  of  facts.  "We  have  already  seen  that  a  pre- 
requisite to  an  amendment  is  the  existence  of  a  legal  and 
valid  service  of  process.^  An  amendment  can  not  cure 
.iurisdictional  defects^  and  nullities ;  and  where  the  court 
acquires  no  jurisdiction  over  the  person  of  the  defendant 
by  reason  of  infirmities  in  the  service  of  process,  no 
amendment  to  the  return  can  confer  jurisdiction  upon  the 
court,  because  no  after-proceedings  can  infuse  validity 
into  that  which  was  a  mere  nullity  f  that  is,  the  record,  in 
its  existing  condition,  must  show  jurisdiction  in  the  court 
^^ithout  the  amendment,  otherwise  the  amendment  can  not 
confer  jurisdiction  on  the  court."^  There  are  some  cases, 
however,  which  do  not  seem  to  grasp  this  fundamental 
principle,^  and  among  them  two  California  cases. 

25  Williamson  v.  Farrow,  1  Bail.  Min.  Co.  v.  Marsano,  10  Nev.  370; 
L.  (S.  C.)   611,  21  Am.  Dec.  492.  Victor  Mill  &  Min.  Co.  v.  Justice 

1  See,  ante,  §  230,  footnote  3.  Court,  18  Nev.  21,  24,  1  Pac.  831; 

Hallett  V.   Righters,   13  How.  Pr. 

2  As  to  jurisdictional  defects,  ^^  y.)  43;  Thatcher  v.  Powell, 
see,  ante,  §  38.  ^g   ^    g     ^g   ^^^^rt.)    119,    127,   5 

3  Kendall  v.  Washburn,  14  How.  l.  Ed.  221,  223;  Galpin  v.  Page, 
Pr.  (N.  Y.)  380.  See:  Clapp  v.  §5  xj.  S.  (18  Wall.)  350,  21  L.  Ed. 
Graves,  26  N.  Y.  418,  420;  Talcott  959;  Pennoyer  v.  Neff.  95  U.  S. 
V.  Rosenberg,  3  Daly  (N.  Y.)  203,  714^  24  L.  Ed.  565;  Settlemier  v. 
8  Abb.  Pr.  N.  S.  287;  Hallett  v.  Sullivan,  97  U.  S.  444,  24  L.  Ed. 
Righters,  13  How.  Pr.  (N.  Y.)  43;  mo. 

Settlemier   v.    Sullivan,    97   U.    S.  5  see,  among  other  cases,  Mason 

444,  24  L.  Ed.  1110.  v.  Messenger,  17  Iowa  261;    Fore- 

4  See,  among  other  cases,  Mc-  man  v.  Carter,  9  Kan.  674;  Kirk- 
Gahen  V.  Carr,  6  Iowa  331,  71  Am.  wood  v.  Reedy,  10  Kan.  453; 
Dec.  421;  Hunter  v.  Eddy,  11  Mont.  Rickards  v.  Ladd,  6  Sawy.  40,  Fed. 
264,  28  Pac.  300;    Scorpion  Silver  Cas.  No.  11804. 

304 


ch.  XI.]  AMENDMENT   OF    RETURN — CRITICISM.  §  234 

Morrissey  v.  Gray^  is  an  instance  in  which  the  doctrine 
announced  is  peculiarly  open  to  criticism, — in  the  interest 
of  those  jurisdictions  which  look  to  Californa  for  prece- 
dents in  matters  of  practice, — because  of  the  flagrant  vio- 
lation by  the  trial  court  of  settled  legal  principles,  the 
prominent  earmarks  of  fraud,  manifest  perjury  for  the 
purpose  of  conferring  jurisdiction,  after  return  of  an 
insufficient  service,  where  no  jurisdiction  existed, — all 
standing  out  so  plainly  as  not  only  to  warrant,  but  the 
ends  of  justice  plainly  demanding,  a  reversal.  The  facts 
in  the  case, — those  sufficient  for  this  discussion, — are 
these :  In  an  action  to  foreclose  a  mortgage  executed  by  a 
decedent,  his  wife,  in  her  personal  capacity,  and  as  admin- 
istratrix, and  the  heirs  of  decedent,  were  made  parties 
defendant  in  the  complaint.  The  process  was  served  and 
the  return  shows  unmistakably  the  character  of  the  ser- 
vice, the  person  upon  whom,  and  the  capacity  in  which 
served,  as  well  as  the  reasons  for  its  method  of  service, 
the  return  reading :  *  *  I  hereby  certify  that  I  received  the 
within  summons  on  the  seventeenth  day  of  April,  A.  D. 
1893,  and  personally  served  the  same  on  April  nineteenth, 
A.  D.  1893,  by  delivering  to  Johanna  Morrissey  a  copy  of 
the  said  summons  attached  to  a  copy  of  the  complaint 
personally  in  the  county  of  Butte,  and  that  by  order  of 
the  plaintiff's  attorney  none  of  the  other  defendants  w^ere 
served.  Dated  this  nineteenth  day  of  April,  1893. ' '  There 
was  no  service  upon  the  administratrix,  and  no  service 
which  could  confer  upon  the  court  jurisdiction  to  enter 
default  judgment  and  a  decree  of  foreclosure  against  the 
estate  of  the  decedent,  and  it  was  not  within  the  judicial 
discretion  of  the  trial  judge,  after  sale  of  the  property, 
and  after  he  had  taken  an  assignment  of  the  property,  to 
authorize,  procure  or  allow  an  amendment  by  the  sheriff 
which  contradicted  and  gave  the  lie  to  his  original  return.^ 

6  Morrissey    v.    Gray,    160    Cal.  "  See,  ante,   §  231,  footnotes  12- 

390,    117    Pac.    438;    Morrissey    v.      14,  and  text  going  therewith. 
Gray,  162  Cal.  638,  124  Pac.  246. 

I  Code  PI.  and  Pr.— 20  305 


§  235  CODE  PLEADING  AND  PRACTICE  [Pt.  I, 

There  were  no  memoranda  upon  the  writ  of  process  from 
which  the  amendment  could  be  allowed,  and  the  court  in 
causing  or  allowing  him  to  impeach  his  original  return  by 
his  oath  plainly  and  wilfully  violated  the  law  for  the 
advantage  of  the  judge's  title  to  the  land.  The  original 
return  not  only  recites  that  the  service  was  made  upon 
Johanna  Morrissey,  but  further  recited  that  ''by  order  of 
the  plaintiff's  attorney"  service  of  the  process  was  not 
made  ujDon  any  of  the  other  defendants, — and  the  plain 
record  of  the  court,  before  and  at  the  time  of  the  amend- 
ment, showed,  by  the  return  of  the  officer  serving  the 
process,  that  Johanna  Morrissey,  as  administratrix,  was 
not  served  ''by  order  of  plaintiff's  attorney."  The  admin- 
istratrix, as  the  personal  representative  of  decedent,  not 
having  been  served,  the  trial  court  never  acquired  juris- 
diction in  the  cause  to  enter  a  default  against  decedent's 
estate  and  to  decree  foreclosure  and  sale  of  the  property, 
and  no  amendment  to  the  return  could  rightfully  be  made 
whicli  could  confer  jurisdiction.  The  service  was  juris- 
dictionally  defective  and  could  not  be  amended.^  And 
even  if  the  return  could  have  been  amended,  it  could  not 
be  amended  by  the  deputy  sheriff  making  the  service  by 
substituting  Johanna  Morrissey  in  her  representative 
capacity  for  Johanna  Morrissey  in  her  individual  capac- 
ity— two  separate  and  distinct  individuals,  as  much  as 
though  the  personal  representative  had  been  another  indi- 
vidual than  Johanna  Morrissey.'^ 

§  235. Time  within  which  amendment  may 

BE  ]made.  There  is  no  specific  time  within  which  the  re- 
turn to  the  service  of  process  must  be  amended,^  and  for 
that  reason  the  amendment  may  be  made  at  any  time,  the 
rights   of   third   persons   not   being   adversely   affected 

8  See,   ante,   §  231,  footnotes  16-  i  Kabn  v.  Mercantile  Town  Mut. 
19,  and  text.                                               Ins.  Co.,  228  Mo.  585,  137  Am.  St. 

9  See,   ante,    §  233,    footnote  16,       Rep.  665,  128  S.  W.  995. 
and  text  going  therewith. 

306 


eh.  XI.]  AMENDING   RETURN IN    WHAT    TIME.  §235 

thereby ;-  but  the  lapse  of  time  should  be  taken  into  con- 
sideration by  the  court  in  determining  upon  the  propriety 
of  allowing  or  disallowing  the  proposed  amendment.^ 
Such  an  amendment  is  generally  allowed  in  those  cases  in 
which  the  purpose  of  the  amendment  is  not  to  confer 
jurisdiction  on  the  court,  but  merely  to  perfect  the  proof 
of  the  jurisdiction  which  the  court  had  pre\dously  ac- 
quired.^ Thus,  in  a  case  of  service  of  the  summons  with- 
out making  a  return  thereof,  an  amendment  by  making 
the  proper  return,  it  has  been  said,  should  be  allow^ed  on 
the  trial  f  and  where  memoranda  were  made  on  the  writ 
of  process  at  the  time  of  service  thereof,  an  amendment 
in  accordance  with  such  memoranda  was  allowed  after  six 
years.''  It  is  not  practical,  even  if  desirable,  to  give  here 
all  the  instances  as  to  the  time  w^hen  amendments  to  re- 
turn of  process  Avere  allowed ;  it  is  sufficient  to  designate 
the  following: 

After  judgment  by  default,  where  the  cause  of  justice 
is  subserved  by  making  the  return  conform  to  the  true 
state  of  facts  by  showing  that  the  process  w^as  properly 
and  legally  served  upon  the  defendant  before  the  judg- 
ment was  directed  to  be  or  was  entered,'^  where  no  inter- 

2  Barnard  v.  Stevens,  2  Ark.  4  Shenandoah  Valley  R.  Co.  v. 
(Vt.)  429,  16  Am.  Dec.  733.  Ashby's   Trustees,   86  Va.   232,   19 

3  See:    Woodward   v.   Harbin,   4  Am.  St.  Rep.  898,  9  S.  E.  1003. 
Ala.  534,  37  Am.  Dec.  753;   Gaff  v.  5  Williamson  v.   Farrow,   1   Bail. 
Spellmeyer,   13    111.   App.    294;    af-  L.  (S.  C.)  611,  21  Am.  Dec.  492. 
firmed,    112   111.   29,   1   N.   E.    170;  6  Thatcher   v.    Miller,    11    Mans. 
Jeffries  v.  Rudloff,  73  Iowa  60,  5  413,  13  Mass.  270. 

Am.  St.   Rep.  654,  34  N.  W.  756;  7  See:  ALA.— Hafflin  v.  McMinn, 

Kirkwood  v.  Reedy,  10  Kan.  453;  2  Stew.  492,  20  Am.  Dec.  58.    CAL. 

Wilton  Mfg.  Co.  V.  Butler,  34  Me.  — Newman,  In  re,  75  Cal.  213,7  Am. 

432;    Scruggs   v.    Scruggs,   46    Mo.  St.  Rep.  146,  16  Pac.  887;  Allison  v. 

271;    O'Brien    v.    Gaslin,    20    Neb.  Thomas,  72  Cal.  562.  1  Am.  St.  Rep. 

347,  30  N.  W.  274;    Northwood  v.  189,  14  Pac.  309;    Herman  v.  San- 

Barrington,    9    N.    H.    369;    Avery  tee,  103  Cal.  519,  42  Am.  St.  Rep. 

V.  Bowman,  39  N.  H.  393;  Shenan-  145,  37  Pac.  509;   McGinn  v.  Rees, 

doah    Valley    R.    Co.    v.    Ashbys  ?,Z    Cal.    App.    291,    165    Pac.    52. 

Trustees,  86  Va.   232,   19   Am.   St.  GA.— Freeman    v.    Cahart,    17    Ga. 

Rep,  898,  9  S.  E.  1003.  349.    ILL.— Johnson  v.  Donnell,  15 

COT 


§235 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


veiling  rights  are  injuriously  affected  f  but  such  amend- 
ment must  be  in  affirmance  of  the  judgment.® 

After  appeal,^^  or  pending  writ  of  error/^  the  return 
to  the  service  of  the  process  has  been  allowed  to  be 
amended,  such  aniendment  in  the  trial  court  being  sIiowti 
in  the  appellate  court  by  a  supplemental  record.^- 


111.  97;  Durham  v.  Heaton,  28  HI. 
264.  81  Am.  Dec.  275  (after  sale); 
Toledo,  P.  &  W.  R.  Co.  v.  Butler. 
53  111.  323;  Chicago  Planing  Mill 
Co.  V.  Merchants'  Nat.  Bank,  86 
111.  587;  La  Salle  County  v.  Milll- 
gan,  143  111.  321,  32  N.  E.  196. 
KAN.— Kirkwood  v.  Reedy,  10 
Kan.  453.  KY. — Mason  v.  Ander- 
son, 19  Ky.  (3  T.  B.  Mon.)  294; 
Thompson  v.  Moore,  91  Ky.  80,  15 
S.  W.  6.    MINN.— Burr  v.  Seymour, 

43  Minn.  401,  19  Am.  St.  Rep.  245, 
45  N.  W.  715.  MO.— Kitchen  v. 
Reinsky,  42  Mo.  427;  McClure  v. 
Wells,  46  Mo.  311.  N.  Y.— Sny- 
der V.  Schram,  59  How.  Pr. 
404.  PA. — Dewar  v.  Spencer,  2 
Whart.  211,  30  Am.  Dec.  241  (re- 
turn of  process  not  signed).  VA. — 
Stotz  V.  Collins,  83  Va.  423,  2  S. 
E.  737;  Shenandoah  Valley  R.  Co. 
V.  Ashby's  Trustees,  86  Va.  232, 
19  Am.  St.  Rep.  891,  9  S.  E.  1003; 
Commercial  Union  Assur.  Co.  v. 
Everhart's  Admr.,  88  Va.  952,  14 
S.  E.  836.  WASH.— Cunningham  v. 
Spokane  Hydraulic  Min.  Co.,  20 
Wash.  450,  72  Am.  St.  Rep.  113,  55 
Pac.  756.  W.  VA.— Capehart  v. 
Cunningham,  12  W.  Va.  750.  WIS. 
— Bacon  v.  Bassett,  19  Wis.  45; 
Fisk  V.  Reigelman,  75  Wis.  499,  17 
Am.  St.   Rep.   198,  43   N.  W.   1117, 

44  N.  W.  766. 

See,  also,  ante,  §  231,  footnotes 
11  and  16. 

s  Allison  V.  Thomas,  72  Cal.  562, 
564,  1  Am.  St.  Rep.  89,  14  Pac.  318. 


9  Chicago  Planing  Mill  Co.  v. 
Merchants'  Nat.  Bank,  97  111.  294, 
300;  Wilcox  v.  Sweet,  24  Mich. 
355;  Montgomery  v.  Merrill,  36 
Mich.  97;  Stewart  v.  Stringer,  45 
Mo.  116;  Magrew  v.  Foster,  54  Mo. 
258;  Dunham  v.  Wilfong,  69  Mo. 
355;  Gasper  v.  Adams,  24  Barb. 
(N.  Y.)  287;  Mills  v.  Howland,  2 
N.  D.  30,  49  N.  W.  413;  Moyer  v. 
Cook,  12  Wis.  335. 

Doctrine  carried  to  unwarranted 
length  in  a  case  where  the  service 
of  process  was  not  sufficient  to 
give  the  court  jurisdiction,  and 
after  judgment  the  trial  court  per- 
mitted sheriff  to  amend  return  to 
service  of  process  by  substitutins; 
an  entirely  different  party  as  the 
person  on  whom  the  process  was 
served. — Morrissey  v.  Gray,  160 
Cal.  390,  117  Pac.  438;  Morrissey 
V.  Gray,  162  Cal.  638,  124  Pac.  246. 

See  criticism  of  these  cases, 
ante,  §  234. 

10  See  Loveland  v.  Sears,  1  Colo. 
433;  Jenkins  v.  Crofton's  Admr, 
10  Ky.  L.  Rep.  456,  9  S.  W.  406; 
Snyder  v.  Schram,  59  How.  Pr. 
(N.  Y.)  404;  Thomas  v.  Goodman, 

25  Tex.  Supp.  446;  Hopkins  v.  Bal- 
timore &  O.  R.  Co.,  42  W.  Va.  535, 

26  S.  E.  187;  Gauley  Coal  Land 
Assoc.  V.  Spies,  61  W.  Va.  19,  55 
S.  E.  903. 

11  Hefflin  v.  McMinn,  2  .  Stew. 
(Ala.)  492,  20  Am.  Dec.  58. 

12  See  Brown  v.  Hill,  5  Ark.  78; 
Bizzell  V.  Stone,  8  Ark.  478;   Love- 


308 


ch.  XL] 


AMENDING  RETURN — IN  WHAT  TIME. 


§235 


After  suit  brought  against  sheriff  for  a  false  return/' 
to  enforce  his  liability  therefor,  the  trial  court  may  permit 
the  officer  to  amend  the  return  in  those  cases  where  jus- 
tice requires  that  this  should  be  done  ;^^  but  such  amend- 
ment rests  purely  in  the  sound  judicial  discretions^  of  the 
court  ;S^  and  it  has  been  said  that  an  amendment  can  not 
be  allowed  where  the  liability  is  fixed  on  the  sheriff  by 
the  original  return,^ '  or  after  judgment  against  the  officer 
for  a  false  return.^^ 

After  expiration  of  term  of  office  of  the  sheriff  or  other 
officer  serving  the  process,  the  trial  court,  in  its  sound 
judicial  discretion,  may  allow  an  amendment  to  be  made 
to  the  return  by  the  officer  serving  the  process,  in  those 
cases  in  which  the  ends  of  justice  require  such  an  amend- 
ment, and  there  is  matter  in  the  record  from  which  such 
amendment  can  be  made,^^  because  the  making  of  such  an 


land  V.  Sears,  1  Colo.  433;  Hawes 
V.  Hawes,  33  111.  286;  Toledo,  P.  & 
W.  Co.  V.  Butler,  53  111.  323;  Terry 
V.  Eureka  College,  70  111.  236;  Ten- 
nent-Stribbling  Shoe  Co.  v.  Har- 
gardin-McKlttrick  Dry  Goods  Co., 
58  111.  App.  368;  Irvine  v.  Scobee, 
15  Ky.  (5  Lit.)  70;  Shamburg  v. 
Noble,  80  Pa.  St.  160;  Gauley  Coal 
Land  Assoc,  v.  Spies,  61  W.  Va. 
19,  55  S.  E.  903. 

13  In  Arkansas  at  any  time  be- 
fore action  against  officer  for  false 
return  has  been  sustained. — Brink- 
ley  V.  Mooney,  9  Ark.  445;  Clayton 
V.  State,  24  Ark.  16. 

14  ALA. — Hodges  v.  Laird,  10 
Ala.  678;  Governor  v.  Bancroft,  16 
Ala.  614;  Niolin  v.  Hamner,  22 
Ala.  578.  IOWA— Jeffries  v.  Rud- 
loff,  73  Iowa  60,  5  Am.  St.  Rep. 
654,  34  N.  W.  756.  ME.— Wilton 
Mfg.  Co.  v.  Butler,  34  Me.  432. 
MISS. — Trotter  v.  Parker,  38  Miss. 
473.  MO. — Corby  v.  Burnes,  36 
Mo.    194.      N.    H. — Northwood    v. 


Barrington,  9  N.  H.  369.  N.  Y.— 
People  V.  Ames,  35  N.  Y.  482,  91 
Am.  Dec.  64.  N.  C. — Stealman  v. 
Greenwood,  113  N.  C.  355,  18  S.  E. 
503;  Swain  v.  Burden,  124  N.  C. 
16,  32  S.  E.  319.  PA.— Whitman  v. 
Higby,  24  Pa.  Co.  Ct.  Rep.  236,  10 
Pa.  Dist.  Rep.  39.  TENN.— Hill  v. 
Hinton,  39  Tenn.  (2  Head.)  124. 
TEX. — Thomas  v.  Browder,  33 
Tex.  783.  VT. — Barnard  v.  Stev- 
ens, 2  Aik.  429,  16  Am.  Dec.  733. 

15  As  to  discretion  of  court,  see, 
ante,  §  231,  footnote  9. 

iG  Campbell  v.  Smith,  115  N.  C. 
498,  20  S.  E.  723. 

IT  Governor  v.  Bancroft,  16  Ala. 
605. 

isMullins  V.  Johnson,  22  Tenn. 
(3  Humph.)  396;  Carr  v.  Meade, 
77  Va.  142. 

19  G A.— Wilson  v.  Ray,  T.  U.  P. 
Charlt.  109;  Beutell  v.  Oliver,  89 
Ga.  246,  15  S.  E.  307.  ILL.— John- 
son V.  Donnell,  15  111.  97;  La  Salle 
County  V.  Milligan,  143  111.  321,  32 


309 


§  236  CODE  PLEADING  AND  PRACTICE.  [Ft.  I, 

amendment  is  not  the  doing  of  an  official  act,  but  merely 
perfecting  the  evidence  relative  to  an  act  already  regu- 
larly and  legally  done.-"  Thus,  where  memoranda  were 
made  upon  the  writ  of  process  at  the  time  of  service,  but 
the  return  was  unsigned,  the  sheriff  was  permitted  to 
complete  the  return  by  signing,  although  his  term  of  office 
had  expired.-^ 

After  removal  of  cause  from  a  state  court  to  a  federal 
court,  the  sheriff  can  not  be  permitted  to  amend,  in  the 
state  court,  the  return  on  the  service  of  process,  for  the 
reason  that  the  removal  of  the  cause  divests  the  state 
court  of  all  jurisdiction  in  the  cause ;--  but  there  may  be 
an  amendment  to  the  return  in  the  federal  court  to  which 
the  cause  is  removed.-^ 

§  236. Who  may  amend.    An  amendment  to 

the  return  on  ser^dce  of  a  writ  of  process  can  properly  be 
made  only  by  the  officer  who  made  the  service  of  the  proc- 
ess, or  in  accordance  with  memoranda  made  by  such  serv- 
ing officer,  which  memoranda  state  the  facts  omitted  from, 
or  incorrectly  stated  in,  the  return  made  to  the  writ.' 

N.  E.  196.  IND. — Dwiggins  v.  Cook,  20  Morris  v.  Schools,  15  111.  266: 

71    Ind.    579.      IOWA — Jeffries    v.  Armstrong  v.  Easton,  40  Ky.  (1  B. 

RudlofE,  73  Iowa  60,  5  Am.  St.  Rep.  Hon.)  68. 

654,  34  N.  W.  756.     KAN.— Alford  21  Adams  v.  Robinson,  18  Mass. 

V.  Hoag,  8  Kan.  App.  141,  54  Pac.  (1  Pick.)  461. 

1105.    KY. — Gay  v.  Caldwell,  3  Ky.  22  Hall  v.  Stevenson,  19  Ore.  153, 

(1    Hard.)     68;     Burnie    v.    Over-  20  Am.  St.  Rep.  803,  23  Pac.  887. 

street,   47   Ky.    (8   B.    Men.)    302;  See  State  v.  Rayburn,  31  Mo.  App. 

Newton    v.    Prather,    62    Ky.     (1  385;  Tallman  v.  Baltimore  &  O.  R. 

Duv.)   100;   Louisville,  H.  &  St.  L.  Co.,  45  Fed.  156;  Hawkins  v.  Price, 

R.  Co.  V.  Com.,  20  Ky.  L.  Rep.  371,  79  Fed.  452. 

46  S.  W.  207.  ME. — Keen  v.  Briggs,  23  See,  among  other  cases,  Rich- 

46    Me.    467.      MASS. — Adams    v.  mond   v.   Brookings,   48   Fed.    241, 

Robinson,  18  Mass.   (1  Pick.)   461.  242;    Stalker  v.  Pullman's  Palace- 

MO.— Miles  V.  Davis,  19   Mo.  408.  Car  Co.,  81  Fed.  989,  990. 

N.  H. — Avery  v.  Bowman,  39-  N.  H.  1  Knapp  v.  Wallace,  50  Ore.  348, 

393.     VA.— Shenandoah  Valley  R.  126  Am.  St.  Rep.  742,  92  Pac.  1054. 

Co.    V.    Ashby's    Trustee.5,    86    Va.  See    O'Conner    v.    Wilson,    57    111. 

232,  19   Am.  St.   Rep.  898,  9   S.  E.  226;   La  Salle  County  v.  Milligan, 

1003.  143  111.  321,  32  N.  E.   196;   Gaff  v. 

310 


ell.  XI.]  AMENDING    RETURN WHO    MAY.  §  236 

A  sheriff  can  not  amend  a  return  made  by  his  deputy-  for 
the  reason  that  a  sheriff  can  not  be  presumed  to  have 
personal  knowledge  as  to  what  was  done  by  his  deputy 
in  making  a  service  of  process ;  and  if  the  facts  can  be 
established  from  memoranda  made  upon  the  original  writ 
at  the  time  by  such  deputy,  it  must  be  on  proof  to  the 
court.^  Thus,  it  has  been  hekl  that  a  sheriff'  after  expira- 
tion of  his  office,  can  not  amend  a  return  to  a  service  of 
process  by  his  deputy,  not  as  to  matters  of  form,  but  as 
to  matters  of  fact  relating  to  the  service  ;^  and  where  the 
sheriff'  was  incompetent  to  serve  the  process,  service  by 
his  deputy,  being  service  by  him,  will  be  invalid,  and  the 
sheriff"  will  not  be  permitted  to  amend  a  return  on  such 
process  by  his  deputy  f  but  where  the  sheriff  was  compe- 
tent to  serve  the  process  he  may  amend  the  return  of  his 
deputy,  even  after  the  expiration  of  his  term  of  office," 
and  the  decease  of  the  deputy,  where  such  deputy  made 
memoranda  on  the  original  process  at  the  time  of  service 
from  which  such  amendment  can  be  made,'^  but  in  the 
absence  of  such  memoranda  the  sheriff  can  not  be  per- 
mitted to  amend  the  return.'^ 

Spellmeyer,   13   111.   App.   294;    af-  By  sheriff  in  some  jurisdictions, 
firmed,    112   111.    29,   1   N.   E.    170;  —See  footnotes  7  and  8,  this  sec- 
Carroll  County  Bank  v.  Goodall,  41  tion. 
N.  H.  81.  4  Knapp  v.  Wallace,  50  Ore.  348, 

Officer  must  have  interest  in  the  126  Am.  St.  Rep.  742,  92  Pac.  1054. 

amendment  before  it  can  be  made,  5  O'Conner  v.  Wilson,  57  111.  234. 

under  some  statutes.— See  Lowen-  „  as  to  amendment  after  expira- 

stein  V.  Krell,  162  Pa.  St.  267,  29  tion   of   term   of  office,   see,    ante. 

Atl.  878.  §  235^    footnotes     18-21.    and    text 

2  O'Conner  v.  Wilson,  57  111.  226,  going  therewith. 

234.  7  See    Insersoll    v.    Sawyer.     If) 

.'!  Knapp  V.  Wallace,  50  Ore.  318,  Mass.  (2  Pick.)  276;  Aveiy  v.  p.ow- 

126  Am.  St.  Rep.  742,  92  Pac.  1054.  man,  39  N.  H.  393. 

See  Smith  v.  Martin,  20  Kan.  572;  In    Washington    letuin    must    be 

Bayley,  In  re,  132  Mass.  457;  Fisk  amended  on  proof  to  the  court. — 

V.  Huiit,  33  Ore.  424,  54  Pac.  660;  See  footnote  3,  this  section. 

Vv^hite  V.  Ladd,  34  Ore.  422,  56  Pac.  ^  See  O'Conner  v.  Wilson,  57  111. 

Cli.  226. 

311 


§  237  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

Deputy-sheriff  may  amend,  in  the  name  of  the  sheriff  by 
him,  where  the  sheriff  was  competent  to  make  service  of 
the  process,  a  return  to  a  service  of  process  made  by  him," 
although  the  right  to  so  amend  is  limited  to  his  term  of 
office  as  deputy  in  some  jurisdictions,^^  and  if  he  is  de- 
ceased, amendment  must  be  by  the  sheriff,  where  the 
deputy  made  memoranda  on  the  process  at  the  time  from 
which  such  amendment  can  be  made.^^  But  after  the 
sheriff  has  become  guarantor  of  the  title  of  property  sold 
by  him  under  an  execution  on  a  judgment  obtained  in  the 
proceeding,  the  deputy-sheriff  serving  the  process  has 
been  held  to  be  incompetent  to  amend  an  erroneous  re- 
turn.^2 

§  237. Method  of  amendment.     The  usual 

manner  in  which  an  amendment  to  a  return  of  service  of 
process  is  made,  after  the  return  has  been  filed,  is  by 
application  made  by  the  officer  serving  the  process  to  the 
court  for  permission  to  make  the  proposed  amendment;' 
and  while  the  allowing  or  disallowing  of  the  proposed 
amendment  is  a  matter  of  sound  judicial  discretion, ^  we 
have  already  seen  that  such  applications  are  treated  with 
liberality,  and  are  allowed  whenever  the  interests  of  jus- 
tice demand  that  the  amendment  shall  be  made  in  order 
to  make  the  record  conform  to  the  facts  in  the  case.^  But 
an  amendment  to  a  return  of  service  of  process  may  be 
allowed  or  directed  and  compelled  upon  the  application 
of  a  party  to  the  suit,  or  by  a  purchaser  under  an  execu- 

9  stone  V.  Wilson,  10  Gratt.  (Va.)  a  specified  amendment  to  the  re- 
533.  turn  of  service  of  process  may  be 

10  See  Shores  v.  Witworth,  76  made,  is  not  equivalent  to  amend- 
'T'enn.  (8  Lea.)  662.  ment;  until  the  amendment  grant- 


ed is  made  the  record  is  in  the 
same  condition  it  was  before  ap- 
plication for  leave  to  amend  was 
made. — Bee  Wittstruck  v.  Temple, 
58  Neb.  16,  78  N.  W.  456. 
1  See,  ante,  §  231,  footnote  5.  o  See,  ante,  §  231,  footnotes  8  et 


11  See    footnotes    7    and    8,    this 
section. 

12  0'Conner    v.    Wilson,    57    111. 
226. 


Actual     amendment     necessary,      seq. 
mere  permission  of  the  court  that  3  id. 

312 


ch.  XI.]  AMENDING   RETURN — ON    NOTICE,  §  238 

tion  on  a  judgment  obtained  in  the  proceedings  under  the 
service  of  the  process,  as  well  as  upon  application  of  the 
officer  serving  the  process  for  leave  to  amend.^  On  such 
an  application,  however,  the  court  can  compel  an  amend- 
ment of  the  return  in  such  a  manner  as  to  complete  an 
imperfect  or  insufficient  return,  only, — i.  e.,  require  a 
return  that  is  appropriate  to  the  writ  as  a  matter  of 
law,^ — not  as  to  facts  not  shown  by  memoranda  made  by 
the  officer  upon  the  original  writ  at  the  time.^  While  the 
court  can  direct  and  compel  the  officer  to  make  the  ap- 
propriate formal  return  the  writ  requires  in  law,  con- 
formable to  the  facts  in  the  case,^  the  court  can  not  direct 
the  officer  serving  the  process  as  to  what  the  return  shall 
be,^  or  compel  the  amendment  of  a  return,  regular  and 
sufficient  at  law,  as  to  matters  of  fact.^ 

§  238. On  notice.    In  one  line  of  cases 

it  is  held  that  the  return  of  the  officer  serving  a  process 
may  be  amended  as  a  matter  of  course,  and  that  notice 
of  the  application  to  the  parties  interested  is  not  neces- 
sary, in  the  absence  of  a   statute  requiring  it;^   that, 

4  Johnson  v.  Wilmington  &  N.  C.  Rousset  v.  Boyle,  45  Cal.  64 ;  Peo- 
Electric  R.  Co.,  1  Penn.  (Del.)  87,  pie  v.  Murback,  64  Cal.  369,  30 
39  Atl.  777;  Beutell  v.  Oliver,  89  Pac.  618;  People  v.  Goldenson,  76 
Ga.  246,  15  S.  E.  307;  Stetson  v.  Cal.  328,  345,  19  Pac.  161. 
Freeman,  35  Kan.  523,  531,  11  Pac.  s  Vastine  v.  Fury,  2  Serg.  &  R. 
431;  Youngstown  Bridge  Co.  v.  (Pa.)  426;  Maris  v.  Schermerhorn, 
White's  Adm'r,  105  Ky.  273,  49  3  Whart.  (Pa.)  13;  Dixon  v.  White 
S.  W.  36.  Sewing-Machine    Co.,    128    Pa.    St. 

5  Dixon  V.  White  Sewing  Ma-  397,  407,  15  Am.  St.  Rep.  683,  5 
chine  Co.,  128  Pa.  St.  397,  407,  15  L.  R.  A.  659,  18  Atl.  502. 

Am.  St.  Rep.  683,  5   L.   R.  A.  659,  9  Flynn    v.    Kalamazoo    District 

18  Atl.  502;   Washington  Mill  Co.  Court,    138   Mich.    127,    101    N.    W. 

V.  Kinnear,  1  Wash.  Tr.  99.  222;   Washington  Mill  Co.  v.  Kin- 

6  Hewell  V.  Lane,  53  Cal.  213,  near,  1  Wash.  Tr.  99;  Smith  v. 
217;  People  v.  Goldenson,  76  Cal.  Gaines,  93  U.  S.  341,  343,  23  L.  Ed. 
328,  345,  19  Pac.  161.     See  Humph-  901. 

ries  V.  Lawson,  7  Ark.  341;  Wilcox  i  Herman    v.    Santee,    103    Cal. 

V.  Moudy,  89  Ind.  232;    Sawyer  v.  519,  42  Am.  St.   Rep.  145,  :57  Pac. 

Curtis,  2  Ashm.  (Pa.)  127.  509;     Woodward     v.     Brown,     119 

7  See  Gavitt  v.  Doub,  23  Cal.  81;  Cal.  283,  299,  63  Am.  St.  Rep.  lOS, 
Howell  V.  Lane,  53  Cal.  213.  217:  51    Pac.    542:    Morrissey    v.    Gray, 


§238 


CODE  PLEADING  AND  PRACTICE. 


[Ft.  T, 


strictly  speaking,  the  proceeding  is  one  between  the  officer 
and  the  court,  is  ex  parte  in  its  nature,  and  that,  in  con- 
templation of  the  law,  the  amended  return  is  made  under 
the  same  sanction  and  responsilnlity  as  the  erroneous  or 
mistaken  one,-  But  the  better  doctrine,  supported  by  the 
better  reason  if  not  also  by  the  weight  of  the  adjudicated 
cases,  is  to  the  effect  that  such  an  amendment  should  not 
be  allowed  except  upon  due  notice  to  the  parties  inter- 
ested and  wdiose  rights  may  be  adversely  affected  by  the 
proposed  amendment;^  and  particularly  is  this  true  in 
those  cases  in  which  the  proposed  amendment  is  not  based 
upon  data  in  the  record, — e.  g,,  memoranda  made  upon 
the  writ  at  the  time  of  serving  by  the  officer, — but  depends 
upon  extraneous  matters,^  or  where  a  long  time  has 
elapsed  after  the  original  return  was  made,  and  new 
interest  may  have  supervened,  or  a  defendant's  interests 
may  be  adversely  affected.^    Where  the  proposed  amend- 


160  Cal.  390,  117  Pac.  438;  Morris- 
sey  V.  Gray,  1G2  Cal.  638,  124  Pac. 
246;  McGinn  v.  Rees,  33  Cal.  App. 
291,  165  Pac.  52;  Rickards  v.  Ladd, 
6  Sawy.  40,  Fed.  Cas.  No.  11804. 
See:  Brown  v.  Hill,  5  Ark.  78; 
Lungren  v.  Harris,  6  Ark.  474; 
Bizzell  V.  Stone,  8  Ark.  478;  Moore 
V.  Purple,  8  111.  (3  Gilm.)  149; 
Morris  v.  Schools,  15  111.  266,  269; 
Kitchen  v.  Reinsky,  42  Mo.  427. 

Notice  to  defendant  is  not  a 
prerequisite  to  permitting  sheriff 
to  amend  his  return. — Kahn  v. 
Mercantile  Town  Mut.  Ins.  Co., 
228  Mo.  585,  137  Am.  St.  Rep.  665, 
128  S.  W.  995. 

2  Rickards  v.  Ladd,  6  Sawy.  40. 
Fed.  Cas.  No.  11804.  See:  Morris 
V.  Schools,  15  111.  266,  269;  Dunn 
V.  Rogers,  43  111.  260;  Jeffries  v. 
Rudloff,  73  Iowa  60,  5  Am.  St.  Rep. 
654,  34  N.  W.  756;  Stetson  v.  Free- 
man, 35  Kan.  523,  11  Pac.  431; 
Green   v.    Kindy,    43   Mich.    280,   5 


N.  W.  297;  Kitchen  v.  Reinsky,  42 
Mo.  427;  Shufeldt  v.  Barlass,  33 
Neb.  785,  51  N.  W.  134;  Phoenix 
Ins.  Co.  V.  King,  52  Neb.  562,  72 
N.  W.  855;  White's  Appeal,  25  Pa. 
St.  373. 

3  Green  v.  Kindy,  43  Mich.  279, 
5  N.  W.  297;  Shufeldt  v.  Barlass, 
33  Neb.  785,  5  N.  W.  134;  Phoenix 
Ins.  Co.  V.  King,  52  Neb.  562,  72 
N.  W.  855;  Wittstruck  v.  Temple, 
58  Neb.  16,  78  N.  W.  456;  Mills 
V.  Howland,  2  N.  D.  30,  49  N.  W. 
413;  Stalker  v.  Pullman's  Palace- 
Car  Co.,  81  Fed.  989. 

4  Hovey  v.  Waite,  34  Mass.  (17 
Pick.)  197;  Merrill  v.  Montgomery. 
25  Mich.  72;  Montgomery  v.  Mer- 
rill, 36  Mich.  97:  Green  v.  Kindy, 
43  Mich.  279,  5  N.  W.  297;  Coch- 
rane V.  Johnson,  95  Mich.  67,  54 
N.  W.  707;  Dobynes  v.  United 
States,  7  U.  S.  (3  Cr.)  241,  2  L.  Ed. 
427. 

5  O'Conner  v.  Wilson,  57  111.  226; 


314 


ell.  XI. j  WAIVER   OP   DEFECTS,   ETC.  §  239 

ment  is  as  to  matters  touclaing  the  jurisdiction  of  the  court 
over  the  person  of  the  defendant,  an  amendment  can 
never  be  properly  allowed  without  due  notice  to  the  defen- 
dant affected.^ 

Waiver  of  objection  for  ivant  of  notice  by  neglecting  to 
ask  to  have  the  order  allowing  the  amendment  set  aside 
and  vacated,  or  by  controverting  the  facts  in  such 
amended  return,  where  subsequent  notice  comes  to  the 
party  claiming  to.  have  been  injured  by  such  amendment, 
and  who  could  have  so  moved  or  controverted  the  amend- 
ment, but  failed  to  do  soJ 

§  239.  Waiver  of  defects  and  objections.  Any  objec- 
tion which  might  be  taken  to  a  writ  of  process,  or  the 
sufficiency  and  legality  of  the  service  thereof,  or  to  the 
return  to  the  service,  is  waived  by  acceptance  of  ser\^ce 
of  complaint  and  consenting  to  go  to  trial  ;^  by  general 
appearance-  and  requesting  an  adjournment;^  by  carry- 
ing up  cause  on  demurrer  ;^  by  failure  to  attack  defect  by 

Thatcher  v.  Miller,  13  Mass.  271:  made  by  the  court  which  tried  the 
Hovey  v  Waite,  34  Mass.  (17  cause,  and  upon  notice  to  the  op- 
Pick.)  197;  Williams  v.  Doe  ex  posite  party." — King  v.  Bates,  80 
dem.  Oppelt,  9  Miss.  (1  Smed.  &  Mich.  367,  20  Am.  St.  Rep.  518,  45 
M.)  559;  Coopwood  v.  Morgan,  34  N.  W.  147. 
Miss.  3G8.  "^  Woodward  v.  Brown,  119  Cal. 

"If  much  time  has  elapsed  since  283,  300,  63  Am.  St.   Rep.  108,  51 

the  first  return,  or  if  new  rights  Pac.    542. 

have  likely  intervened,  it  is  neces-  i  Ward  v.   Manly,   113   Ala.   631, 

sary    and    proper    that    notice    to  21   So.   307. 

those  interests  should  he  given."  2  R  o  g  u  e    River    M  i  n.    Co.    v. 

—Stetson    V.    Freeman,    35    Kan.  Walker,     1     Ore.    341;     White     v. 

523,  11  Pac.  431.  Northwestern    Stage    Co.,    5    Ore. 

oDenison  v.  Smith,  33Mich.l55;  102;    Keyser  v.   Pollock,   20   Utah 

Haynes  v.  Knowles,  39  Mich.  407;  371,  376,  59  Pac.  87. 

Green   v.   Kindy,   43   Mich.   279,    5  As    to     appearance,     see,     post, 

N.  W.  297;   Clark  v.  McGregor,  55  g§  255   et  seq. 

Mich.  412,  21  N.  W.  866;   King  v.  a  Doughty   v.   Jones,   3   N.   J.    U 

Bates,    80    Mich.    367,    20    Am.    St.  (2  Pen.)   653. 

Rep.  518,  45  N.  W.  147.  i  Eaton    v.    Whitaker,    23    Mass. 

"Amendments    without    which  (6  Pick.)   465. 

the    court    acquires     no     jurisdic-  Compare:    Colt  v.  Partridge,  48 

tion   to  try  the  case  can  only  be  Mass.    (7  Mete.)    570. 

315 


§239 


CODE  PLEADING  AND  PRACTICE, 


[Pt.  I, 


motion,^  special  demurrer  or  special  answer;^  by  failure 
to  except  to  a  failure  or  refusal  of  the  court  to  act  on  a 
motion  to  quasli  process  -^  by  filing  a  general  demurrer  f 
by  general  objection  to  admission  of  judgment  as  evi- 
dence;^ by  going  to  trial  on  merits  without  ruling  on 
motion  to  dismiss  process  ;^^  by  motion  to  quash  process 
because  of  bar  of  statute  ;^^  by  pleading  to  the  merits  or 
otherwise  joining  issue  ;^-  by  procuring  rule  for  security 
for  costs  ;^^  and  by  waiver  of  process. ^^  But  a  special 
appearance  for  the  specific  purpose  of  objecting  to  the 
sufficiency  of  the  process,  or  to  the  regularity  and  legality 
of  the  service  thereof,  or  to  the  sufficiency  of  the  return, 
does  not  constitute  a  waiver  in  some  jurisdictions.^^  Thus 


5  W^oodward  v.  Brown,  119  Cal. 
283,  63  Am.  St.  Rep.  108,  51  Pac. 
2,    542. 

6  Salt  Lake  City  v.  Salt  Lake 
Inv.  Co.,  43  Utah  181,  134  Pac. 
603. 

7  Trimble  v.  Shaffer,  3  W^.  Va. 
614. 

See,  also,  footnote  10,  this  sec- 
tion. 

8  Sanders  v.  Farwell,  1  Mont. 
599. 

Special  demurrer  on  ground 
court  has  no  jurisdiction  of  the 
person  or  of  the  subject-matter  of 
the  action,  constitutes  a  waiver. 
— Olcese  V.  Justices'  Court,  156 
Cal.  82,  103  Pac.  317. 

!>  Tewalt  V.  Irwin,  164  111.  592, 
46  N.  E.  13. 

10  Webster  v.  Wheeler,  119 
Mich.  601,  78  N.  W.  456. 

See,  also,  footnote  7,  this  sec- 
tion. 

11  Lane  Bros.  &  Co.  v.  Bauser- 
man,  103  Va.  146,  106  Am.  St.  Rep. 
872,  48  S.  E.  857. 

12  Hayes  v.  Shattuck,  21  Cal.  51; 
Shay  V.  Superior  Court,  57  Cal. 
542;    Sears    v.    Starbird,    78    Cal. 


225,  20  Pac.  547  (after  unsuccess- 
ful motion  to  vacate  service  of 
process);  First  Nat.  Bank  v. 
Washington  County,  17  Idaho  306, 
317,  105  Pac.  1056;  Maxwell  v. 
Deens,  46  Mich.  35,  8  N.  W.  561; 
Dunlap  V.  Byers,  110  Mich.  109, 
114,  67  N.  W.  1067;  Improved- 
Match  Co.  v.  Michigan  Mut.  Fire 
Ins.  Co.,  122  Mich.  256,  80  N.  W. 
1088  (although  motion  to  quash 
summons  and  service  previously 
overruled) ;  Pearce  v.  Bogert,  10 
Daly  (N.  Y.)  277  (objection  to  ser- 
vice of  process  being  overruled) ; 
Rogue  River  Min.  Co.  v.  Walker, 
1  Ore.  341. 

13  Squires  v.  Broom  Common 
Pleas,  10  Wend.  (N.  Y.)  600. 

14  Penn  Tobacco  Co.  v.  Leman, 
109  Ga.  428,  34  S.  E.  679. 

15  See:  Eldridge  v.  Kay,  45  Cal. 
49;  Lander  v.  Flemming,  47  Cal. 
614;  Olcese  v.  Justices'  Court,  156 
Cal.  82,  103  Pac.  317;  Kinkade  v. 
Myers,  17  Ore.  471,  21  Pac.  558. 

Any  other  relief  asked  will  con- 
stitute a  waiver. — Olcese  v.  Jus- 
tices' Court,  156  Cal.  82,  103  Pac. 
317. 


316 


ch.  XL]  CURE   BY    SUBSEQUENT   PROCEEDINGS.  §  240 

it  has  been  said  that  an  immaterial  cross-examination  of 
the  person  serving  the  process  as  to  his  nationality  and 
occupation,  by  an  attorney  specially  appearing  for  the 
purpose  of  objecting  to  the  sufficiency  of  the  service  of 
process  on  the  ground  that  the  person  serving  the  same 
was  a  minor  and  not  competent  to  make  the  service,  does 
not  constitute  a  waiver  of  the  latter  objection.^®  And  it 
has  been  said  to  be  no  waiver  of  defects  in  a  summons  to 
confess  judgment  on  an  inter-plea  of  a  third  party,  after 
motion  to  quash  the  summons  has  been  overruled.^'^ 

§  240,  Cure  by  subsequent  peoceedings  —  Defects 
WHICH  MAY  be  CURED.  Subscqucut  proceedings  may  or 
may  not  cure  defects  and  irregularities  in  the  original 
writ  of  process,  or  in  the  service  or  return  of  service  of 
process,  depending  upon  the  character  of  the  defect  com- 
plained of  and  the  nature  of  the  subsequent  proceedings. 
Thus,  an  alias  summons  and  a  personal  service  thereof 
cures, — or  rather,  renders  immaterial, — a  defect  in  an 
affidavit  for  an  order  for  service  of  process  by  publication 
of  summons  ;^  defective  return  to  the  service  of  process  is 
cured  by  a  subsequent  sufficient  return ;-  judgment  cures 
irregularities  in  the  summons,  or  in  the  service  thereof, 
not  objected  to,  where  the  court  has  jurisdiction  of  the 
subject-matter  of  the  action,^ — e.  g.,  the  omission  of  the 
Christian  name  of  an  infant  defendant,  there  being  but 
one  infant  defendant,  and  he  having  been  properly 
served  ;"*  nunc  pro  tunc  amendment  cures  a  mere  irregu- 
larity in  the  service  of  a  process  f  recitals  in  judgment 

16  Gilson  V.  Kuenert,  15  S.  D.  3  Artope  v.  Macon  &  B.  R.  Co., 
291,  89  N.  W.   472.  110  Ga.  346,  35  S.  E.  657. 

17  State  V.  Parks,  34  Okla.  335,  4  Gravelle  v.  Canadian  &  Amer- 
126  Pac.  242.  j^^^  Mortgage  &  T.  Co.,  42  Wash. 

iMcKlbben    v.    McKibben.    139  ^^      ^^    ^^^    ^^ 
Cal.  448,  73  Pac.  143. 

2  Norton    v.    Meader.    4     Sawy.  5  Baumeister  v.  Demuth,  84  App. 

603,  Fed.  Cas.  No.  10351;  affirmed,  Div.    (N.  Y.)    394,  82  N.  Y.   Supp. 

78  U.  S.   (11  Wall.)   442,  20  L.  Ed.  831 ;    affirmed.    178    N.    Y.    630.    71 

184.  N.  E.  1128;   Fink  v.  Wallach,  109 

317 


§2-41  CODE    PLEADING   AND    PRACTICE.  [Pt.   I. 

being  held  sufficient  to  show  service  upon  defendant,''  it 
has  been  further  held  that  <*;  recital  in  a  judgment  recov- 
ered in  a  proceeding  that  "default  of  defendant  was  duly 
entered,"  cured  irregularities'  and  technical  defects  in  a 
return  to  the  service  of  the  process,'' — e.  g.,  caused  by  tlie 
failure  of  the  person  serving  the  process  to  state  in  his 
affida\at  of  service,  attached  to  the  return,  that  at  tlie 
time  of  making  the  service  he  was  an  adult  citizen.'^ 

Soundness  of  doctrine  last  announced  is  open  to  very 
serious  doubt,  for  the  reason  that  the  statement  as  to  age 
and  citizenship  is  a  statutory  requirement  and  necessai-y 
to  show  capacity,  under  the  statute,  to  make  the  service 
of  the  process,  and  a  failure  of  the  affidavit  to  the  return 
of  service  to  show  this  statutory  requisite  is  not  a  "tecli- 
nical,"  but  a  jurisdictional,  defect,  because  without  au 
thority  on  the  part  of  the  person  serving  the  process  the 
court  acquires  no  jurisdiction  for  any  purpose.  Recitals 
in  a  judgment  can  not  be  allowed  to  contradict  the  plain 
statements  in  the  return  of  service,  or  to  help  out  i\n 
otherwise  jurisdictionally-defective  return. 

§  241.    Defects  which  are  not  cured.     There  av<' 

many  defects  and  irregularities  in  process  and  the  service 
or  return  thereof  which  are  not  cured  by  subsequent  pro- 
ceedings, among  which  are :  The  court  acquiring  no  juris- 

App.    Div.    (N.    Y.)    718,   96    N.    Y.  cess  is  merely  ground   for  motion 

Siipp.   543.  to  set  aside  the  summons. — Pec!< 

Jurisdiction     defect,     rule     is  v.  Strauss,  33  Cal.   678;    Sodini   v. 

otherwise.— See,    post,    §  241,   foot-  Sodini,  94   Minn.  303,  110  Am.  St. 

note  3.  Rep.  371,  102  N.  W.  862. 

uAlderson    v.   Bell,   9    Cal.   315;  s  Peck  v.   Strauss,   33   Cal.   678; 

Lick  V.  Stockdale,  18  Cal.  219,  223;  Burke    v.    Interstate    Savings     & 

Meredith    v.    Santa    Clara    Mining  L.  Assoc,  25  Mont.  315,  321,  322, 

Assoc,  60  Cal.  617,  622;   Lyons  v.  324,  87  Am.  St.   Rep.  416,  64  Pac. 

Roach,  84  Cal.  27,  29,  23  Pac.  1026;  879. 

Kahn  v.  Matthai,  115  Cal.  689,  692,  9  Peck  v.   Strauss,  33   Cal.   678; 

47    Pac.    698;    Galpin    v.    Page,    1  Burke    v.    Interstate     Savings     & 

Sawy.  309,  325,  327,  Fed.  Cas.  No.  L.  Assoc,  25  Mont.  315,  321,  322, 

5205.  324,  87  Am.  St.   Rep.   416,   64  Pac. 

7  Irregularity    in   service   of  pro-  879. 

318 


ell.  XL]  DEFECTS    NOT    CURED.       ,  §  241 

diction  over  a  nonresident  defendant  because  of  a  defec- 
tive or  illegal  service  of  the  process,  the  proper  service 
of  a  notice  of  appeal  upon  such  defendant  will  not  cure 
the  defect  in  the  service  of  the  original  process,  or  confer 
upon  the  appellate  court  jurisdiction  over  such  defen- 
dant.^ A  judgment  rendered  in  the  proceeding  does  not 
cure  the  defect  or  irregularity  in  the  service  of  the  process 
by  the  plaintiff  himself.-  A  nunc  pro  tunc  order  will  not 
cure  a  jurisdictional  defect.^  A  personal  action  com- 
menced against  a  nonresident,  but  no  effective  service  of 
process  secured,  because  personal  service  was  made  out 
of  the  jurisdiction  of  the  court  and  out  of  the  bailiwick  of 
the  officer  making  the  service,  a  subsequent  amendment 
of  the  complaint  converting  the  personal  action  into  a 
real  action,  does  not  cure  the  defect  in  the  service  of  the 
original  process  by  relation,  or  in  any  other  way.^  Recital 
in  a  judgment  which  is  rendered  after  an  insufficient  ser- 
vice of  process  by  publication,  that  proof  has  been  made 
that  the  summons  had  been  legally  served  upon  the  defen- 
dant, and  that  his  time  for  answering  had  expired,  does 
not  cure  the  defective  service  or  conclude  the  defendant ;"' 
and  a  recital  that  due  service  of  process  was  made,  where 
the  return  purports  to  set  out  the  manner  in  which  the 
service  was  made,  and  the  mode  set  out  is  insufficient,  such 
recital  in  the  judgment  or  decree  wdll  not  aid  the  return.'' 
Substituted  service  of  summons  which  is  insufficient  to 
confer  jurisdiction  on  the  court  over  the  person  of  the 

1  Johnson   v.    Brafford,    114    Ky.  4  Huff   v.    Shepard,    58    Mo.    242. 

96,  70  S.  W.  193.  5  Yolo  County  v.  Knight,  70  Cal. 

■2  Toenniges    v.    Drake,    7    Colo.  430,  11  Pac.  662. 

471,  4  Pac.   790.  «  See:  Trimble  v.  Longworth,  13 

:i  Fink     v.     Wallach,     47     Misc.  Ohio  431;    Heatherly  v.  Hadley,  4 

(N.  Y.)  247,  95  N.  Y.  Supp.  247;  de-  Ore.    1,    15;    Xorthcut   v.    Lemery, 

cision  reversed  on  another  point,  8  Ore.  322;   Knapp  v.  Wallace,  50 

109   App.   Div.    (N.  Y.)    718,   96   N.  Ore.    348,    354,    126    Am.    St.    Rep. 

Y.  Supp.  543.  742,    92    Pac.     1057;     Fishburn    v. 

A  mere  irregularity,  the  rule  is  Landershausen,    50    Ore.   368,   373, 

otherwise.— See,   ante,   §  240,  foot-  15  Ann.  Cas.  975,  14  L.  R.  A.  (N. 

note  5.  S.)  1234,  92  Pac.  1064. 


§  241  CODE  PLEADING  AND  PRACTICE.  [Ft.  I, 

defendant,  because  of  jurisdictional  defects  in  the  return, 
a  subsequent  personal  service  upon  the  defendant  of 
notice  of  an  application  for  leave  to  amend  the  declara- 
tion, does  not  cure  the  defective  service  and  confer  juris- 
diction on  the  court.'^ 

7  King  V.  Davis,  137  Fed.  222; 
affirmed,  in  Blankenship  v.  King, 
85  C.  C.  A.  348,  157  Fed.  676. 


320 


CHAPTER  XII. 

TROCEEDINGS  TO  PROCURE  JURISDICTION ACCEPTANCE  AND 

WAIVER  OF  SERVICE. 

§  242.  Acceptance  or  acknowledgment  of  service — In  general. 

§  243.  Collusive  acceptance. 

§  244.  Place  of  acceptance. 

§  245.  Time  of  acceptance. 

§  246.  Must  be  in  writing. 

§  247.  Nonresident  defendant. 

§  248.  Proof  of  genuineness  of  signature. 

§  249.  Who  may  accept  service. 

§  250.  Waiver  of  process  or  of  service  thereof — In  general. 

§  251.  What  constitutes  a  waiver. 

§  252.  What  does  not  constitute  a  waiver. 

§  25G.  Who  may  waive. 

§  254.  Who  may  not  waive. 

§  242.  Acceptance  or  acknowledgment  of  service — 
In  general.  In  many  of  the  jurisdictions  there  are  stat- 
utes regulating  the  acceptance  or  acknowledgment  of 
service  of  process;  and  where  these  statutes  exist  they 
must  be  strictly  pursued  in  order  to  confer  jurisdiction 
upon  the  court  over  the  person  of  the  defendant.^  An 
acceptance  or  acknowledgment  of  service  endorsed  upon 
the  process  and  signed  by  the  defendant  is  usually  a  suf- 
ficient service  of  process,^  or  sufficient  proof  of  service 
of  process,^  where  the  signature  of  the  defendant  is  prop- 
erly proved.^    Acceptance  or  acknowledgment  of  service 

1  Court  seeking  to  acquire  juris-  2  Earhu  v.  Ware,  9  Port.   (Ala.) 

diction    by    a    course    specially  291;    Houghton    v.    Spear,    4    Ala. 

pointed  out  by  statute,  strict  com-  257;   Lewis  v.  State  Bank,  4  Ark. 

pliance    necessary. — Heatherly    v.  257;    Banks  v.  Banks,  31   111.  161. 

Hadley,  4  Ore.  1,  14;   Northcut  v,  3  Culmer  v.  Cline,  22  Utah  216, 

Lemery,  8  Ore.  323.    See  Kelley  v.  61  Pac.  1008. 

Kelley,  161  Mass.  Ill,  118,  42  Am.  4  As  to  proving  signature  of  de-» 

St.  Rep.  389,  25  L.  R.  A.  806,  36  N.  fendant,  see,  post,  §  248. 
E.  837. 

I  Code  PI.  and  Pr.— 21  321 


§§243,244  CODE    PLEADING   AND   PRACTICE.  [Pt.  I, 

does  not  affect  tlie  question  of  jurisdiction  of  the  court/' — 
fdtliough  it  has  been  said  to  estop  the  defendant  to  deny 
the  jurisdiction  of  the  court,''' — it  does  away  with  the 
necessity  of  service  of  the  process  merely/  leaving  all 
other  questions  open,  simply  being  equivalent  to  a  ser^dce 
by  the  officer  to  whom  the  process  is  directed  made  in  his 
bailiwick,*  and  does  not  deprive  of  the  right  to  defend'*  or 
make  any  technical  objection.  Admission  of  service  of  a 
copy  instead  of  the  original,  has  been  said  to  be  imma- 
terial.^'' 

§  243.    Collusive  acceptance.     An  acceptance  or 

acknowledgment  of  service  of  process  must  be  made  by 
the  defendant  to  be  bound,  or  by  an  agent  specially  au- 
thorized in  this  particular.^  A  collusive  acceptance  by  a 
person  not  authorized  will  of  course  be  a  nullity.  Thus, 
in  proceedings  for  the  condemnation  of  land  by  a  railroad 
company,  service  of  the  process  was  made  upon  a  person 
who  was  in  no  way  connected  with  the  defendant,  and 
whom  representatives  of  the  railroad  company  had  pro- 
cured to  go  upon  the  premises  for  the  purpose  of  having 
service  made  upon  him  so  as  to  bind  the  defendant.  The 
court  say:  **The  service  was  clearly  illegal,  and  knowm 
to  be  so  by  the  representatives  of  the  railroad  who  pro- 
cured his  action,  and  there  was  no  jurisdiction"  acquired 
by  the  court. - 

^  244.    Place  of  acceptance.    Some  of  the  statutes 

regulating  the  acceptance  of  service  of  process  require 
that  the  place  of  acceptance  shall  be  given,  and  where  there 

5  Washington  v.  Barnes,  41  Ga.  9  Ochus  v.  Sheldon,  12  Fla.  138. 

?,07.  10  Maples    v.    Mackey,    15    Hun 

<;  Franklin     v.     Conrad-Stanford  (N.  Y.)  533. 

Co.,  70  C.  C.  A.  171,  137  Fed.  737.  i  As     to     who     may     accept     or 

"  Washington  v.  Barnes",  41  Ga.  acknowledge    service    of    process, 

307;  Donlevy  v.  Cooper,  2  Nott.  &  see,  post,  §  249. 

McC.  L.   (S.  C.)   548.  2  Dunlap  v.  Toledo,  A.  A.  &  G. 

s  Cheney  v.  Harding,  21  Neb.  65,  Trunk  R.  Co.,  46  Mich.   190,  9  N. 

31  N.  W.  255.  W.  249. 

322 


eh.  XII.]  ACCEPTANCE — TIME   OP.  §  245 

is  such  a  provision  it  must  be  strictly  complied  with  ;^  but 
in  the  absence  of  statutory  requirement  the  place  of  accep- 
tance need  not  be  given.-  The  object  of  designating  the 
place  of  acceptance  of  service,  where  such  designation  is 
required,  is  to  determine  the  time  when  answer  must  be 
filed  and  the  period  when  a  default  may  be  taken. ^  Accep- 
tance out  of  the  jurisdiction  of  the  court  and  out  of  the 
bailiwick  of  the  officer  to  whom  the  process  is  directed, — 
e.  g.  in  another  state, — is  sufficient  to  confer  jurisdiction 
on  the  court.^  When  the  place  where  the  writ  is  served 
is  not  stated,  the  court  should  assume  that  it  was  served 
within  the  jurisdiction  of  the  officer  to  whom  it  was 
directed.^ 

§  245.  Time  of  acceptance.  Under  statute  so  re- 
quiring the  time  of  the  acceptance  or  acknowledgment  of 
service  of  process  must  be  given.^  Where  defendant's 
attorneys  accepted  service^  of  summons,  but  attached  no 
date  thereto,  the  date  of  the  return  by  the  sheriff  was 
held  to  be  the  true  date  of  the  service.^  Acceptance  or 
acknowledgment  of  service  of  process  may  be  made  before 
the  action  is  commenced  by  filing  the  complaint  or  other- 
wise,^ in  the  absence  of  prohibitive  statutory  provisions ;'' 
where  there  are  prohibitive  statutory  provisions,  accept- 
ance before  commencement  of  suit  confers  no  jurisdic- 
tion," but  the  presumption  wall  be  that  the  acceptance  was 

1  Heatherly  v.  Hadley,  4  Ore.  1.  r.  Crane  v.  Brannan,  3  Cal.  192. 

See,  also,  ante,  §  242,  footnote  1.  i  Heatherly  v.  Hadley,  4  Ore.  1. 

-•  Alderson   v.   Bell,   9    Cal.    315;  See,  also,  ante,  §242,  footnote  1. 

Maples  V.  Mackey,  15  Hun  (N.  Y.)  u  As   to   acceptance   by   attorney 

533;    Nicholson   v.    Cox,    83   N.   C.  of    service    of    process,    see,    post, 

44,    35    Am.    Rep.    556;     Stoddard  §249. 

Mfg.  Co.  V.  Mattice,  10  S.  D.  253,  :«  Crane  v.   Brannan,  3  Cal.   192. 

72  N.  W.  891.  4  James    v.    Edward    Thompson 

••!  Alderson  v.  Bell,  9  Cal.  315.  Co.,  17  Ga.  App.  578,  87  S.  E.  842. 

4  Allurd  V.  Voller,  107  Mich.  476,  r,  Logan  v.  Robertson  (Tex.  Civ. 

65  N.  W.  285.  App.),  83  S.  W.  395. 

As  to  acceptance  by  nonresident  «  McAnelly  v.  Ward,  72  Tex.  342, 

in  another  state,  see,  post,  §  247.  12  S.  W.  206. 

323 


§  246  CODE  PLEADING  AND  PRACTICE.  [Pt.  1, 

after  action  was  commenced/  Where  process  was  issued 
and  attached  to  the  complaint,  but  was  not  served  before 
the  return  day,  and  thereafter  it  was  indorsed  and  signed 
by  the  defendant:  '^ Service  of  foregoing  complaint  ac- 
knowledged," this  was  held  to  be  a  good  acceptance  and 
to  confer  jurisdiction  on  the  court,^  being  a  waiver  of  the 
issuance  of  a  new  process  f  but  acceptance  after  appear- 
ance time  is  not  acknowledgment  that  the  complaint  and 
process  were  legally  served  before  appearance  day.^"  An 
acceptance  or  acknowledgment  of  service  of  process  after 
judgment  is  not  equivalent  to  personal  service.^^ 

§  246.    Must  be  in  writing.    An  acknowledgment 

of  service  of  summons  is  only  sufficient  when  reduced  to 
writing  and  subscribed  by  the  party  ;^  a  verbal  acknowl- 
edgment is  not  sufficient;-  neither  is  an  endorsement  of 
acceptance  made  on  the  process  by  the  sheriff.^  The  stat- 
ute requiring  an  acceptance  or  acknowledgment  of  ser\dce 
to  be  endorsed  by  defendant  on  the  process,  dated,  signed 
and  witnessed,  service  by  writing  a  letter  to  defendant, 
informing  him  of  the  pendency  of  the  suit,  and  requesting 
him  to  accept  service,  which  he  did  over  his  own  signa- 
ture, on  the  same  sheet  as  the  letter,  and  returned  it  to 
plaintiff,  this  was  held  to  be  a  good  service,  where  the 
defendant  appeared  ;^  but  it  would  not  have  been,  within 
the  provision  of  the  statute,  if  the  defendant  had  not 
appeared.  When  a  defendant  living  in  another  county 
waives  the  issuance  of  a  second  original  process,  his 

T  Philadelphia    Underw  r  i  t  e  r  s'  i  Montgomery   v.    Tutt,    11    Cal. 

Agency,  etc.,  v.  Neurenberg  (Tex.  307;    Godwin  v.  Monds,  106  N.  C. 

Civ.  App.),  144  S.  W.  357.  448,  10  S.  E.  1004. 

8  McConnell    v.    McConnell,    135  Compare:  Borton  v.  Nix,  20  Tex. 

Ga.  828,  70  S.  E.  647.  39. 

0  Id.  2  Montgomery   v.    Tutt,    11    Cal. 

As  to  waiver,   see,   post,    §§  250  307. 

et  seq.  3  Vaumeter  v.   Durham,    31    111. 

10  Bell   V,   Verdel,   140    Ga.    768,  237. 

79  S.  E.  849.  4  Phillips    v.    Corey,    1    Ind.    Tr. 

11  State  V.  Cohen,  13  S.  C.  198.  567,  45   S.  W.   119. 

324 


ell.  XII.]  ACCEPTANCE NONRESIDENT.  §§247,248 

acceptance  of  service  may  be  written  on  a  separate  piece 
of  paper  and  attached  to  the  complaint.'^ 

§247.    NoNKESiDENT  DEFENDANT.     Under  a  statute 

requiring  service  of  process  and  return  of  service  on  a 
non-resident  defendant  in  order  to  confer  jurisdiction  on 
the  court,  an  endorsement  of  acceptance  of  service  by  a 
nonresident,  made  out  of  the  state,  has  been  said  to  be 
insufficient  under  such  statute  to  confer  jurisdiction  ;^  but 
the  general  rule  is  that  acceptance  made  out  of  the  state 
by  a  nonresident  is  equivalent  to  personal  service  out 
of  the  state  after  an  order  for  service  by  publication,  and 
confers  jurisdiction  on  the  court,-  although  the  process  is 
not  strictly  formal  f  but  such  acceptance  will  not  be  bind- 
ing on  the  defendant  unless  there  was  an  order  for  service 
of  process  by  publication  of  summons.^  In  some  juris- 
dictions, however,  such  an  acceptance  is  treated  as  an 
order  for  service  by  publication  duly  made.^ 

§  248.    Proof  of  genuineness  of  signature.  Where 

a  defendant  accepts  service,  but  does  not  appear,  his  sig- 
nature does  not  prove  itself,  but  the  service  must  be 
proved  by  proving  the  genuineness  of  the  signature,  or  it 
will  be  insufficient  to  confer  jurisdiction  on  the  court  ;^ 
an  endorsement  of  acceptance  or  acknowledgment  of  serv- 
ice and  signature  in  the  handwriting  of  the  sheriff  serving 

5  James  v.  Edward  Thompson  Alderson  v.  Bell,  9  Cal.  315;  Gate- 
Co.,  17  Ga.  App.  578,  87  S.  E.  842.  wood  v.  Rucker,   17  Ky.    (1  T.  B. 

1  Chickering  v.  Farlis,  26  111.  Mon.)  21;  South  v.  Carr,  23  Ky. 
507.  (7   T.   B.   Mon.)    419;    Jackson   v. 

2  AUurd  V.  Voller,  107  Mich.  476,  Speed,  26  Ky.  (3  J.  J.  Marsh.)  56; 
65  N.  W.  285;  Cheney  v.  Harding,  Kendrick  v.  Kendrick,  27  Ky.  (4 
21  Neb.  68,  32  N.  W.  64.  J.  J.   Marsh.)    241;    Lyne  v.   Bank 

3  Gay  V.  Grant,  101  N.  C.  206,  of  Kentucky,  28  Ky.  (5  J.  J. 
8  S.  E.  99,  106.  Marsh.)     545;    Johnson    v.    Del- 

4Ricker  v.    Vaughan,    23    S.    C.  bridge,   35   Mich.   436;    Bozman  v. 

187.  Brower,    7    Miss.     (6    How.)     43; 

5  Smith  V.  Chilton,  77  Va.  535.  Litchfield  v.  Burwell,  1  N.  Y.  Code 

1  Welch  V.  Walker,  4  Port.  (Ala.)  Rep.    N.    S.    42,    5    How.    Pr.    341; 

120;    Norwood    v.    Riddle,    1    Ala.  Moffitt   v.    McGrath,    25    Ore.    478, 

195;  Gibson,  ex  parte,  10  Ark.  572;  480,  36  Pac.  578. 

325 


§249  CODE    PLEADING    AND    PRACTICE.  [I't.  I, 

the  process  is  not  sufficient.-  It  has  been  said  that  courts 
take  judicial  notice  of  the  signatures  of  their  offices  as 
such,^  but  where  an  attorney,  though  an  **  officer  of  the 
court,"  accepts  service  for  his  client,  his  signature  must 
be  proved.^  When,  therefore,  the  proof  of  service  of 
process  consists  of  the  written  admissions  of  defendants, 
such  admissions,  to  be  available  in  the  action,  should  be 
accompanied  with  some  evidence  of  the  genuineness  of 
the  signatures  of  the  parties ;  in  the  absence  of  such  evi- 
dence, the  court  can  not  notice  them.^ 

§  249.    Who  may  accept  service.  We  have  already 

seen  that  acceptance  or  acknowledgment  of  service  of 
process  must  be  by  the  party  affected,  or  by  some  one 
acting  for  him  thereunto  duly  authorized.^  An  attorney 
of  the  court,  accepting  service  for  his  client,  is  presumed 
to  be  duly  authorized,  in  the  absence  of  a  showing  to  the 
contrary,-  and  is  usually  sufficient^  to  give  the  court  juris- 
diction.^ However,  it  has  been  said  that  acceptance  by 
an  attorney  not  of  record  will  not  be  sufficient,  in  the 
absence  of  appearance  of  the  defendant.''  The  attorney 
for  the  plaintiff  can  never  accept  service  for  the  defend- 
ant.® A  clerk  in  an  attorney 's  office,  authorized  to  serve 
papers  and  accept  service  of  papers  in  cases  in  which  the 
attorney  is  retained,  has  no  authority  to  accept  service  of 
process  in  an  action  against  the  attorney.^  A  curator  ad 
hoc  may  not  accept  service  of  process;^  and  a  general 

2  Norwood    V.    Riddle,     9     Port.  3  Marling  v.  Robrecht,  13  W.  Va. 

(Ala.)    425.  440. 

sAlderson   v.   Bell,    9   Cal.   315;  4  Hendrix    v.    Cawthorn,    71    Ga. 

Fenton  v.   American  Jewelry  Co.,  742 
51  Neb.  395.  396.  70  N.  W.  931.  /g^^^^^  ^    g^^^^^    ^^  ^^    ^^ 

4  Masterson  v.  Le  Claire,  4  Mmn. 


•1  Sleeper    v.    Sleeper,    1    Hand. 
(Ohio)   530. 


163. 

sAlderson   v.   Bell,   9   Cal.    315; 
Moffitt  V.    McGrath,    25    Ore.    478,  '^  Lower  v.  Wilson,  9   S.  D.  252, 

480,  36  Pac.  578.  62  Am.  St.  Rep.  865,  68  N.  W.  545. 

1  See,  ante,  §  243.  s  Mitchell  &  Ramelsburg  Furni- 

2  Purcell  V.  Bennett,  68  N.  J.  L.      ture  Co.  v.  Sampson,  40  Fed.  805. 
519.  53  Atl.  235. 

326 


ell.  XII.]  WHO    MAY    ACCEPT — WAIVER,  §  250 

ag-ent  can  not  accept  service  of  process,  unless  specially 
authorized  f  nor  can  a  general  guardian  accept  service  on 
an  infant.^**  A  sheriff  may  accept  service  of  a  petition 
for  an  injunction  to  restrain  him  from  selling  exempt 
property,  in  the  absence  of  statutory  prohibition."  A 
son,  not  a  member  of  the  family  and  not  duly  authorized 
thereto,  can  not  accept  service  of  process  for  his  father. ^- 
Statutory  agent  of  a  foreign  corporation,  designated  as 
the  person  upon  whom  service  of  process  may  be  made, 
can  not  admit  service  of  process  or  waive  summons  ;'^  and 
where  no  such  statutory  agent  has  been  designated,  an 
agent  or  officer  of  the  foreign  corporation  can  not  accept 
service.^*  Yet  under  a  statute  pro\T:ding  that  service  of 
process  against  a  foreign  corporation,  doing  business 
within  the  state,  may  be  made  upon  its  agent,  it  was  held 
that  such  agent  may  accept  service  of  process;'"'  but  this 
decision  is  thought  to  be  too  broad,  for  the  reason  that 
the  authority  of  the  agent  to  accept  service  was  not  in 
question,  and  the  point  as  thus  decided  not  being  involved, 
the  holding  is  pure  dictum. 

§  250.  Waiver  of  process  or  of  service  thereof — In 
GENERAL,.  A  waivcr  of  the  service  of  a  process  by  indorse- 
ment on  the  original  writ,  over  the  signature  of  the  de- 

9  Leblanc  v.  Perroux,  21  La.  New  River  Mineral  Co.  v. 
Ann.  26.                                                       Seeley,   56  C.  C.  A.   505,   120  Fed. 

10  Clark  v.  Thompson,  47  111.  25,      193. 

95   fi^fy^     Qec.   457.  Power    of    attorney    authorizing 

acceptance   of  process   as   well   as 

service  thereof,  the  rule  of  course 

is  otherwise. — See  South  Pub.  Co. 
n  Tinney  v.  Vittur,  134  La.  549.      ^    ^.^^  ^^^^^^  g^  ^^^  ^^    Y.,  41, 

64  So.  407.  jjg^   21  N.  Y.   Supp.  675,  1056;    af- 

i::  Finney  v.   Clark,   86  Va.   354,  firmed,    137    N.    Y.    610,    33    S.    E. 

10  S.  E.  569.  744. 

13  Bennett    v.    Supreme    Tent  i4  New    River    Mineral     Co.    v. 

Knishts    of    Maccabees    of    the  Seeley,  56  C.  C.  A.   505,  102   Fed. 

World,   40   Wash.   431,   2    L.    R.   A.  193. 

(N.  S.)  389,  82  Pac.  744.  See  i5  Atlantic  &  G.  R.  Co.  v.  Jack- 
Farmer  V.  National  Life  Assoc,  sonville,  P.  &  M.  R.  Co.,  51  Ga. 
50  Fed.   829.  458. 

327 


As  to  service  on    infant  of  pro- 
cess, see,  ante,  §  198. 


§  251  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

fendant,  is  equivalent  to  service,^  and  is  good  even  when 
dated  before  the  conunencement  of  the  action  by  the  filing 
of  a  complaint,  in  the  absence  of  a  prohibitive  statute.- 
A  copy  required  to  be  served  in  order  to  constitute  a  good 
service,  it  may  be  waived  by  parol  f  and  a  waiver  of  the 
reading  of  the  summons,  where  reading  is  required  to 
constitute  a  sufficient  service,  does  not  affect  the  validity 
of  the  ser\T.ce.^  Agreement  to  receive  notice  of  a  legal 
proceeding  is  a  waiver  of  a  formal  service  of  process, 
and  binding  upon  the  party.^  Appeal  from  a  justices' 
court  judgment  to  a  court  in  which  the  trial  must  be  de 
novo,  is  a  waiver  of  defects  in  process  or  in  the  service 
thereof.® 

§  251.    What  constitutes  a  waiver.    Indorsement 

of  acknowledgment  of  due  and  legal  ser\'ice,  and  a  waiver 
of  copy,  process,  etc.,  constitutes  a  waiver  of  a  copy  of  the 
complaint  and  of  the  process  thereto.^  Where  the  holder 
of  the  legal  title  to  land  disclaims  all  interest  therein,  and 
expresses  a  willingness  to  convey  the  legal  title  to  any  one 
in  whom  the  equitable  title  rests,  this  constitutes  a  waiver 
of  a  technical  service  of  summons  to  make  him  a  party 
to  the  action.^  Where  process  is  attached  to  a  complaint 
for  a  divorce  alleging  the  defendant  to  be  a  resident  of 
the  county  in  which  the  action  is  brought,  a  waiver  of 
service,  duly  indorsed  upon  the  complaint  and  signed  by 
the  defendant,  as  follows:  *' Service  of  foregoing  com- 
plaint acknowledged.  Jurisdiction  of  superior  court  of 
Fulton  county  recognized,"  held  to  constitute  a  waiver  of 

1  Johnson  v.Monnell,  13  Iowa  300.  6  Gulf  Pipe  Line  Co.  v.  Vander- 

2  Battle  V.  Eddy,  31  Tex.  368.  berg,     28     Okla.     637,     Ann.     Cas. 
As  to  acceptance  of  service  or      1912D,  407,  34  L.  R.  A.  (N.  S.)  661, 

acknowledgment  of  service  before  115  Pac.  782. 

complaint  is  filed,  see,  ante,  §  245,  Full  collection  of  authorities  in 

footnotes  4  and  5.  notes,   Ann.   Cas.   1912D.   411,  and 

3Chapman    v.    Allen,    Morr.  34  L.  R.  A.  (N.  S.)  661. 

(Iowa)    23.  1  Carter  v.  Penn,  79  Ga.   747,  4 

4  Casteel  v.  Hiday,  13  Ind.  536.  S.  E.  896. 

5  Spencer  v.  Haughton,   68   Cal.  2  Harrington     v.     Williams,     31 
82,  89,  8  Pac.  679.  Tex.  448. 

328 


I 


ell.  XII.]  WAIVER   OF   PROCESS — WHAT   IS.  §§  252,  253 

issuance  of  process,  and  also  of  any  objection  to  jurisdic- 
tion of  the  court  on  the  ground  that  the  defendant  resided 
in  another  county.* 

§  252.  What  does  not  constitute  a  waiver.  Ap- 
pearance by  an  attorney  for  a  nonresident  defendant  in  a 
motion  to  quash  the  service  of  process  in  an  action  to  try 
title  to  land,  who  secures  a  continuance  of  the  hearing 
without  disclosing  any  service  of  the  process  on  the  defen- 
dant, does  not  constitute  a  w^aiver  of  legal  service  of  proc- 
ess ;^  and  a  mere  entry  in  the  record  that  the  cause  was 
"continued  by  consent  of  parties,"  in  a  cause  in  which 
one  only  of  several  defendants  was  served  with  process, 
does  not  constitute  a  waiver  of  service  of  process  or  con- 
fer jurisdiction  on  the  court  as  to  defendants  not  served."^ 
Statements  made  in  an  affidavit  in  support  of  a  motion  to 
set  aside  a  default,  can  not  be  deemed  a  waiver  of  the 
service  of  process.* 

§  253.    Who  may  waive.    The  party  to  be  affected 

by  the  determination  of  the  action  may  waive  the  issuance 
or  the  ser^dce  of  process  ;^  any  other  person  can  not  unless 
specially  authorized  in  the  premises.  This  is  the  general 
rule  of  law\-  But  it  has  been  said  that  a  general  guar- 
dian,* or  a  natural  guardian,^  may  waive  the  issuance  or 

3  McConnell    v.    McConnell,    135  484,  486;    Emeric  v.  Alvarado,   64 

Ga.  828,  70  S.  E.  647.  Cal.  529,  597,  2  Pac.  48,  3  Pac.  105; 

1  Hopkins    v.    State    (Tex.    Civ.  Richardson  v.  Loupe,  80  Cal.  490, 

App.),  28  S.  W.  225.  499,    22    Pac.    227;     Redmond    v. 


2  Snow  V.  Grace,  25  Ark.  570. 


Peterson,  102  Cal.  595,  41  Am.  St. 
Rep.    204,    36   Pac.   923;    Banta   v. 
3  Doerfler    v.    Schmidt,    64    Cal.      calhoon,  9  Ky.    (2  A.  K.  Marsh.) 
265,  30  Pac.  816.  jg^.   ^nkeny  v.  Blackston,  7  Ore. 

1  See,  ante,  §§542,  550.  407,  413;    Cowan  v.  Anderson,   47 

2  See,   post,   §254.  Tenn.   (7  Caldw.)    284;    Masson  v. 
As  to  waiver  by  fiduciaries,  in-      Swan,    53    Tenn.    (6    Heisk.)    450; 

eluding  general  guardian,  see  ex-      Scott  v.  Porter,  70  Tenn.   (2  Lea) 

haustive  note,  32  L.  R.  A.  681.  224;    Simpson   v.   Belvin,   37    Tex. 

As   to    necessity   for   service   of      674;    Weisley   v.    Kenyon,    28    Vt. 

infant,  see  note,  89  Am.  Dec.  186.      6;   Sprague  v.  Litherberry,  4  McL. 

3  Gronfier   v.    Puymirol,    19    Cal.      442,  Fed.  Cas.  No.  13250. 

629;    Smith   v.  McDonald,   42   Cal.  4  Fuller  v.  Smith,  49  Vt.  253. 

329 


§  254  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

service  of  process  on  an  infant,  even  where  real  estate  is 
involved  in  the  action;^  however,  this  doctrine  has  not 
gone  unchallenged.^ 

In  California,  in  all  actions  against  an  infant  or  involv- 
ing his  interests,  except  the  one  instance  hereafter  noted 
in  this  section,  the  statute  requires  that  there  must  be 
personal  service  of  all  process  upon  an  infant  under  the 
age  of  fourteen  years  residing  within  the  state,  and  also 
upon  his  father,  mother,  or  guardian ;'''  but  a  subsequent 
section  of  the  code  provides  that  service  upon  the  guar- 
dian shall  be  equivalent  to  service  upon  the  infant,  and 
also  that  the  guardian  may  appear  and  waive  all  process 
and  notice,  in  an  action  concerning  the  estate  of  a  deceased 
person  in  which  the  infant  is  interested.^  In  the  case  of 
an  insane  or  otherwise  incompetent  person  the  same  pro- 
"\dsions  for  service  on  the  guardian  is  made  by  the  same 
sections  of  the  code,  but  it  has  been  held  that  there  must 
be  personal  service  upon  the  insane  or  otherwise  incom- 
petent person.*^ 

§  254.    Who  may  not  waive.    An  attorney  may  not 

waive  service  of  process  upon  an  infant  defendant;^  and 
an  attorney-in-fact  can  not  waive  service  of  process  with- 
out special  authority  so  to  do.-    Curator  ad  hoc  can  not 

5  Ewing  V.  Higby,  7  Ohio,  pt.  I,  See,  also,  ante,  §  174. 

198,   28    Am.    Dec.    633;    Ewing   v.  8  See  Kerr's  Cyc.  Cal.  Code  Civ. 

Hollister,  T  Ohio.  pt.  II,  138;  Scott  Proc,   §  1722. 

V.  Porter,  70  Tenn.  (2  Lea)  224.  9  Justice  v.  Ott,  87  Cal.  530,  532, 

<i  Haley  v.  Taylor,  39  Ark.  104;  25  Pac.  691. 

Clark  V.   Thompson,   47  111.  25,   95  i  Evans  v.  Davies,  39  Ark.  235; 

Am.    Dec.    457;    Greenman    v.  Timmons   v.    Timmons,   6   Ind.    8: 

Harvey,  53  111.  386;   Dolin  v.  Het-  Armstrong    v.    Wyandotte    Bridge 

tuger,  57  111.  384;  Bonnell  v.  Holt,  Co.,  Macahon,  167,  1  Kan.    (Dass. 

89    111.    77;    Doe    ex    dem.    Platter  Ed.)   576;   Gamoche  v.  Prevost,  71 

V.    Anderson,    5    Ind.    33;    Kansas  Mo.  84;   Mockey  v.  Grey,  2  Johns. 

City,  St.  J.  &  C.  B.  R.  Co.  v.  Camp-  (N.  Y.)    192;    Russell  v.   Texas   & 

bell,  65  Mo.  585.  P.  R.   Co.,   68   Tex.   646. 

"  See  Kerr's  Cyc.  Cal.  Code  Civ.  2  Lamb    v.    Gaston    &    Simpson 

Proc,  2d  ed.,  §411,  par.  3;   Bien-  Gold   &   Silver   Min.   Co.,   1  Mont, 

nial  Supp.,  p.  3058.  R4. 

330 


ell.  XII. 


WHO    MAY    WAI\E    PROCESS. 


§  2o4 


waive  service  of  jDrocess"  ou  i 
can  not  waive  service  of  pr 
and  an  infant  can  not  waive 
formal  part  thereof.** 

.!  Hill  V.  Barlow,  6  Rob.  (La.) 
142;  Hyde  v.  Craddick,  10  Rob. 
(La.)  387;  Carpenter  v.  Beatty,  12 
Rob.  (La.)  540;  Stockton  v.  Has- 
luck,  10  Mart.  (La.)  472;  Edmon- 
son V.  Mississippi  &  A.  R.  Co.,  13 
La.  284;  Ticknor  v.  Calhoun,  28 
La.  Ann.  258. 

4  Cromier  v.  De  Valcourt,  33  La. 
Ann.  1168. 

■".  Hickenbotham  v.  Blackledge, 
54  111.  316;  Campbell  v.  Campbell, 
63  111.  502;  Chambers  v.  Jones,  72 
111.  275;  Robbins  v.  Bobbins,  2 
Tnd.  74;  Pugh  v.  Pugh,  9  Ind.  132; 
Guy  V.  Pierson,  21  Ind.  18;  Abdil 
V.  Abdil,  26  Ind.  287;  Ingersoll  v. 
Mangain,  84  N.  Y.  622,  1  N.  Y. 
Civ.  Proc.  Rep.  151,  61  How.  Pr. 
149,  affirming  24  Hun  202;   Young 


nfant/  A  guardian  ad  litem 
ocess  on  infant  defendant ;'' 
service  of  process  or  of  a^iy 


V.  Young,  91  N.  C.  359;  Moore  v. 
Stark,  I  Ohio  St.  369;  Benson  v. 
Cilley,  8  Ohio  St.  604;  Wheatley 
V.  Harvey,  31  Tenn.  (1  Swan) 
484;  Robertson  v.  Robertson,  32 
Tenn.  (2  Swan)  197;  Crippen  v. 
Crippen,  38  Tenn.  (1  Head)  128; 
Taylor  v.  Walker,  48  Tenn.  (1 
Heisk.)  734. 

I-  Winston  v.  McLendon,  43  Miss. 
254. 

Compare:  Rogers  v.  McLean,  31 
Haib.  (N.  Y.)  304,  10  Abb.  Pr.  306, 
holding  committee  of  lunatic  in- 
fant m  a  y,  without  service  o  n 
lunatic,  cause  appearance  to  be 
entered  and  guardian  appointed. 
This  decision  manifestly  is  not 
sound  law,  and  was  reversed  in 
11  Abb.  Pr.  (N.  Y.)  440.  which 
latter  is  affirmed  in  34  N.  Y.  536. 


331 


CHAPTER  XIII. 

PROCEEDINGS  TO  OBTAIN   JURISDICTION APPEARANCE. 

§  255.    In  general. 

§  256.    As  to  what  constitutes  appearance. 

§  257.    As  to  kinds  of  appearance — In  general. 

§  258.    General  appearance — What  constitutes. 

§  259. A  step  taken  in  the  cause. 

§  260. Motion  in  the  action. 

§  261. On  jurisdictional  grounds. 

§  262. On  other  than  jurisdictional  grounds. 

§  263.    Special  appearance — In  general. 

§  264. Wliat  constitutes. 

§  265. When  becomes  general  appearance. 

§  266. ]\Ioving  on  non jurisdictional  grounds. 

§  267.    Appearance  by  party — In  general. 

§  268.    In  person  or  by  attorney. 

§  269.    To  contest  motion. 

§  270, Rights  of  party  appearing. 

§  271.    Appearance  by  attorney — In  general. 

§  272.    ■ Authority  of  attorney  to  appear. 

§  273.    Signature  of  attorney — No  notice  of :  Proof  of. 

§  274.    Stipulations  of  binding  on  client. 

§  275.    Appearance  by  agent,  attorney-in-fact,  etc. 

§  276.    Board  of  education,  etc. :  Suits  by  and  against — Power  to 
employ  counsel. 

§  277.    Cities :  Suits  by  and  against — Power  to  employ  counsel. 

§  278.    Counties :  Suits  by  and  against — Power  to  employ  counsel. 

§  279.    Eminent  domain — Wlio  may  appear. 

§  280,    Escheat  proceedings— Who  may  appear, 

§  281.    Heirship :  Proceedings  to  determine — Who  may  appear. 

§  282.    Husband  and  wife — Appearance  in  suit  against. 

§  283.    Infants,  incompetents  or  insane  persons — Appearance  by. 

§  284.    Partners :  Suits  by  and  against — Appearance. 

§  285.    State :  Suits  by  and  against — Appearance :  Divorce  pro- 
ceedings. 

332 


Ch.  XIII.]  APPEARANCE — IN    GENERAL.  §  255 

§  286.    Towns :  Suits  by  and  against — Power  to  employ  counsel. 

§  287.    Vessels :  Actions  against — Who  may  appear. 

§  288.    Withdrawal  of  appearance — Allowance  and  effect. 

§  255.  In  general.  Under  a  statute  similar  to  the  Cali- 
fornia statute/  providing  that  after  the  filing  of  the  com- 
plaint a  defendant  in  the  action  may,  in  writing,  appear, 
or  answer,  or  demur,  whether  the  summons  has  been 
issued  or  not ;  and  such  appearance,  answer,  or  demurrer 
shall  be  deemed  a  waiver  of  summons,  and  a  voluntary 
appearance  by  a  defendant  gives  jurisdiction  without  issu- 
ance of  summons,^  as  the  only  object  of  the  summons  is 
to  bring  a  party  into  court,  and  if  that  object  is  obtained 
without  issuance  or  service,  there  can  be  no  injury  to  the 
defendant.^  Appearance  covers  all  defects  and  irregii- 
larities  in  process,  and  the  want  of  service.^  A  general 
appearance  not  only  waives  defects  in  a  writ  or  summons, 
but  gives  jurisdiction  over  the  person  in  cases  where  the 
writ  was  void.^    A  general  appearance  and  the  filing  of  an 

1  Kerr's  Cyc.  Cal.  Code  Civ.  Martin  v.  Carter,  48  Fed.  598; 
Proc,  §  406.  Frank  v.  Wedderin,  68  Fed.  823. 

2  Id.; Hayes  v.  Shattuck,  21  Cal.  3  Smith  v.  Curtis,  7  Cal.  584, 
51,  55;  Shay  v.  Superior  Court,  57  587;  Ford  v.  Bushard,  116  Cal. 
Cal.  541,  542;  TyrreU  v.  Baldwin,  273,  276,  48  Pac.  119;  Dyas  v. 
67  Cal.   1,  6   Pac.   867;    Elizabeth-  Keaton,   1   Mont.   495,   504. 

port  Cordage  Co.  v.  Whitlock,  37  4  Johnston  v.  San  Francisco  Sav. 

Fla.   190,   223,   20   So.   255;    Moore  Union,  75  Cal.  134,  139,  7  Am.  St. 

V.  Kirby,  1  Idaho  55,  58;  First  Nat.  Rep.   129,   16   Pac.   753;    Barber  v. 

Bank    v.    Washington    County,    17  Briscoe,  8  Mont.  214,  19  Pac.  589; 

Idaho  306,  317,  105  Pac.  1053,  1056;  Kinkade    v.    Myers,    17    Ore.    470. 

Johnson  Loan   &  T.   Co.  v.   Burr,  21  Pac.  557;    Sands  v.  Knox,  7  U. 

7  Kan.  App.  703,  707,  51  Pac.  916;  S.   (3  Cr.)   490,  498,  2  L.  Ed.  511; 

Dunlap   V.    Byers,    110    Mich.    109,  Wood  v.  Lide,  8  U.  S.  (4  Cr.)  180, 

114,  67  N.  W.  1067;  Dyas  v.  Keaton,  2  L.  Ed.  588;    McCoy  v.  Lennons, 

3  Mont.  495,  504;  Godfrey  v.  Doug-  Hemps.  216,  Fed.  Cas.  No.  8730a. 
las   County,   28   Ore.   448,    43   Pac.  5  Anderson   v.    Morton,    21   App. 

171;    Keyser  v.   Pollock,   20   Utah  D.  C.  449;  Rundles  v.  Jones,  3  Ind. 

371,    376,    59    Pac.    87;     O'Dell    v.  37;   State  ex  rel.  Curtis  v.  McCul- 

Rogers,    44   Wis.    136;    Shields    v.  lough,    2    Nev.    202;    Golden    v. 

Thomas,  59  U.  S.   (18  How.)    253,  Murphy,  31  Nev.  395,  103  Pac.  394, 

15  L.  Ed.  368;  Carrington  v.  Bents,  105  Pac.  99;   Henningsen  v.  Tono- 

1  McL.   174,  Fed.   Cas.   No.   2446;  pah   &    Goldfield   R.    Co.,   32    Nev. 

333 


§255 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  1, 


answer  after  denial  of  a  motion  to  quash  the  return  upon 
the  summons  constitute  a  waiver  of  all  irregularities  or 
defects  in  the  issue,  service,  or  return  of  the  process/^  A 
defendant  can  not  answer  and  make  a  defense  on  the 
merits  without  making  a  general  appearance  in  spite  of 
his  special  appearance,  and  when  he  does  so,  he  invokes 
the  judgment  of  the  court  and  submits  himself  and  his 
rights  to  its  jurisdiction,  and  can  no  longer  be  heard  to 
say  that  it  had  no  jurisdiction  over  his  person."^  And 
when  a  party  who  has  not  been  properly  served  with  proc- 
ess appears  in  a  case,  and  asks  to  have  a  decree  against 
him  set  aside  for  the  reason  that  the  court  had  no  juris- 
diction of  his  person,  and  for  the  further  reason  that  such 
decree  was  procured  by  fraud  and  deceit,  and  was  without 
evidence  to  support  it,  such  appearance  is  general,  and  is 
a  waiver,  although  made  after  judgment,  of  all  defects  in 
the  service  of  process.**     But  such  general  appearance 

51,  104  Pac.  223;  Bank  of  Valley 
V.  Bank  of  Berkeley,  3  W.  Va. 
391;  Mahaney  v.  Kephart,  15  W. 
Va.  618;  Shepherd  v.  Brown,  30 
W.  Va.  18,  3  S.  E.  189;  State  v. 
Thacker  Coal  &  Coke  Co..  49  W. 
Va.  140,  142,  38  S.  E.  539:  Blair 
V.  Henderson,  49  W.  Va.  285,  38 
S.  E.  554;  Pollard  v.  Dwight,  8 
U.  S.  (4  Cr.)  421,  2  L.  Ed.  666; 
Farrer  v.  United  States,  28  U.  S. 
(3  Pet.)  459,  7  L.  Ed.  741;  Moore, 
In  matter  of,  209  U.  S.  551,  14 
Ann.  Cas.  1164,  52  L.  Ed.  909,  28 
Sup.  Ct.  Ptep.  706;  Clarke  v.  New 
Jersey  Steam  Nav.  Co..  1  Story 
531,  540,  Fed.  Cas.  No.  2859;  Piatt 
V.  Manning,  34  Fed.  818  (appear- 
ance cures  unauthorized  service) ; 
United  States  v.  New  York  &  O. 
S.  S.  Co.,  132  C.  C.  A.  305,  216 
Fed.  61,  69. 

tJ  See:  Sears  v.  Starbird,  78  Cal. 
225,  20  Pac.  547;  Union  Pac.  R. 
Co.  V.   De   Busk,   12   Colo.  294,   13 


Am.  St.  Rep.  221,  3  L.  R.  A.  350, 
20  Pac.  752;  Lord  v.  Hendrie  & 
Bolthoff  Mfg.  Co.,  13  Colo.  393,  22 
Pac.  782;  Ruby  Chief  Min.  &  Mill. 
Co.  V.  Greeley,  17  Colo.  199,  29 
Pac.  668;  Campbell  Printing  Press 
&  Mfg.  Co.  V.  Marsh,  20  Colo.  22, 
36  Pac.  799;  Smith  v.  Alford,  31 
Utah  354,  88  Pac.  18. 

Pleading  to  merits  after  special 
appearance  and  overruling  motion 
to  quash  service  of  process  and 
objection  saved  to  the  ruling. — 
Fisher,  Sons  &  Co.  v.  Crowley,  57 
W.  Va.  312,  4  Ann.  Cas.  282,  50 
S.  E.   422. 

T  Sealy  v.  California  Lumber 
Co.,  19  Ore.  94,  24  Pac.  197. 

sYorke  v.  Yorke,  3  N.  D.  343, 
55  N.  W.  1095.  See:  McBane  v. 
People,  50  111.  503;  Burdette  v. 
Corgan,  26  Kan.  102;  Curtis  v. 
Jackson,  23  Minn.  268;  Frear  v. 
Helchert,  34  Minn.  96,  24  N.  W. 
319;    Leake   v.    Gallogly,    34    Neb. 


ell.  XIII.]  APPEARANX'E — DEFECTS   IN    PROCESS.  §  255 

will  not  validate  a  decree  otherwise  invalid  by  reason  of 
want  of  jurisdiction  of  the  court  over  the  defendant  in 
tlio  muse/'  or  for  fraud  practiced  in  procurement  of  the 
.judi>Tiient.^^  If  a  person  is  not  named  as  a  party  to  the 
action  or  served  Avith  summons,  but  files  an  answer  which 
i-ocites  that  he  was  sued  under  a  certain  fictitious  name,  to 
which  no  objection  is  made,  and  the  case  is  tried  and  judg- 
ment rendered  against  liim,  he  is  bound  by  such  judgment. 
The  non-insertion  of  his  true  name  by  amendment  to  the 
complaint  does  not  render  the  judgment  void  on  a  collat- 
eral attack.^^  But  an  aj^pearance,  to  be  effective,  must  be 
with  knowledge  that  an  action  is  pending,  and  with  a  full 
intention  to  appear  therein. ^- 

Substantial  defects  in  writ  of  process, — e.  g.  not  naming 
the  return  day, — as  a  want  of  service  of  the  process  in  the 
manner  required  by  law,  are  not  waived  by  an  appearance 
after  judgment  and  moving  it  set  aside  the  judgment  for 
such  defects.^-''  AVlien  an  action  was  brought  in  a  court, 
the  judge  of  which  was  disqualified  from  hearing  the  case 
on  account  of  relationship  to  one  of  the  defendants,  some 
of  the  other  defendants  not  appearing,  the  clerk  entered 

857,  52  N.  W.  824;    Carpentier  v.  v.     Clendenin,     3     Mont.     44,     49; 

Minturn,    65    Barb.    (N.    Y.)    293;  Yorke  v.   Yorke,   3   N.   D.   343,   55 

Fee  V.  Big  Sand  Iron  Co.,  13  Ohio  N.  W.  1095;   State  v.  Cohen,  13  S. 

St.    563;    Elliott    v.    Lawhead,    43  C.  198. 

Ohio    St.   171,    1    N.    E.    Rep.    577;  Judgment  without  parties,  how- 

Grantier  v.   Rosencrance,  27  Wis.  ever  perfect  in  form,  is  a  nullity. 

488 ;  Anderson  v.  Coburn,  27  Wis.  —Wilcoxson  v.  Burton,  27  Cal.  228, 

558;  Ins.  Co.  v.  Swineford,  28  Wis.  37  Am.  Dec.  66.    See  Ryan  v.  Daly, 

257;    Alderson   v.   White,   32   Wis.  g  ^^1.   238. 
308. 

!)  Gray  v.  Hawes,  8  Cal.  562.  See: 
Moore  v.  Watkins,  1  Ark.  268; 
Briggs    V.    Sneghan,    45    Ind.    14; 

Boals    V.    Shules,    29    Iowa    507;  ^av.  Union,  75  Cal.  134,  7  Am.  St. 

Melhop  V.  Doane,  31   Iowa  400,   7  ^^P'  ^^S,   16  Pac.  753. 
Am.    Rep.    150;    Rea   v.    Rea,    123  i^Crary  v.  Barber,  1  Colo.   172. 

Iowa  245,  98  N.  W.  789;    Shaw  v.  1.'.  See  authorities  in  footnote  9, 

Rowland,  32  Kan.  154;  Godfrey  v.  this    section;    also    United    States 

Valentine,    39    Minn.    336,    12    Am.  v.  Yeates,  47  U.  S.   (6  How.)   605, 

St.  Rep.  657,  40  N.  W.  163;   Black  12  L.  Ed.  575. 

335 


10  Godfrey   v.   Godfrey,   3   N.   D. 
343,  55  N.  W.  1095. 

11  Johnston    v.    San    Francisco 


§  256  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

a  default  against  them.  It  was  held  that  the  entry  of  the 
default,  being  a  ministerial  act,  was  rightly  made.^*  If  it 
does  not  appear  affirmatively  upon  the  face  of  a  record 
of  a  court  of  general  jurisdiction  that  the  court  had  juris- 
diction of  the  defendant,  that  fact  will  be  presumed,  unless 
tlie  record  shows  affirmatively  that  no  jurisdiction  was 
acquired  ;^^  and  that  fact  can  be  shown  only  by  the 
record.^® 

§  256.     As  TO   WHAT   CONSTITUTES  APPEARANCE.      We 

have  already  seen  that  to  constitute  an  effective  appear- 
ance there  must  be  a  knowledge  that  an  action  is  pending 
and  a  definite  intention  to  appear  therein.^  It  is  not  every 
act  of,  or  proceeding  taken  by,  a  person  made  a  party  to 
an  action  that  constitutes  an  appearance  therein.  Thus, 
aiding  in  and  encouraging  a  suit  does  not  constitute  an 
appearance  and  make  the  person  so  aiding  and  encourag- 
ing a  party  thereto.-  By  filing  written  objections  to  the 
manner  of  serving  a  writ  of  process  and  challenging  its 
sufficiency,  a  person  does  not  necessarily  appear  in  the  ac- 
tion.^ An  order  of  the  court  changing  the  place  of  trial  to 
another  county  and  continuing  the  cause,  made  on  the  ap- 
plication of  a  defendant  who  has  specially  appeared,  only, 
does  not  constitute  an  appearance  in  the  cause  ;^  and  a 

14  People  V.  De  Carillo,  35  Cal.  the  action. — Honeycutt  v.  Nyquist, 
37;  Dudley  v.  White,  44  Fla.  269,  Peterson  &  Co.,  12  Wyo.  183, 
31  So.  831.  109  Am.  St.   Rep.  975,  74  Pac.  90. 

15  Carpentier  v.  Oakland,  City  of,  Attendance  at  trial  to  watch  the 
30  Cal.  439;  Seaboard  Nat.  Bank  proceedings  does  not  constitute  ar 
V.  Ackerman,  16  Cal.  App.  59,  116  appearance  in  the  case.— Crary  v. 
Pac.  93.  Barber,  1  Colo.  172,  174;  McCoy  v. 

16  Carpentier    v.    Oakland,    City      ^«"'    ^    ^ash.    504.    510.    20    Pac. 

595. 


of,  30  Cal.  439. 

1  See,  ante,  §  255,  footnote  12 


3  See:    Crary  v.  Barber,  1  Colo 
172,  174;  Law  v.  Nelson,  14  Colo. 
2  State  V.  King,  64  W.  Va.  560,      409,  24  Pac.  2;  Nye  v.  Liscomb,  38 
63  S.  E.  474.  Mass.   (21  Pick.)   263;   Malcolm  v. 

Acceptance  of  service  of  motion      Rogers,  1  Cow.  (N.  Y.)  1. 
for  order  to  sell  property  attached.  As   to    special    appearance,    see, 

by  attorney  of  defendant,  does  not      post,  §§  263  et  seq. 
constitute  a  general  appearance  in  -i  Tapley  v.  Doane,  3  Colo.  22. 

336 


Lii.  xm.j 


WHAT    CO^iSllTUTKS    APPEARANCE. 


§  2oG 


mere  recital  in  a  transcript  upon  a  writ  of  error,  that  the 
defendant  entered  his  appearance  by  some  unnamed  at- 
torney, does  not  show  actual  appearance.^  A  notice  given 
by  an  attorney  to  plaintiff's  attorney,  that  the  defendant 
will  move  before  a  court  commissioner  for  the  dissolution 
of  an  attachment  issued  in  the  cause,  does  not  constitute  an 
appearance  in  the  action;^  and  where  a  defendant  appears 
specially  for  the  purpose  of  taking  advantage  of  an  irreg- 
ular process  by  a  motion  to  dismiss,  this  does  not  consti- 
tute an  appearance  and  a  waiver  of  his  rights  so  as  to 
cure  the  defect.'^  An  answer  to  the  merits  does  not  waive 
the  benefit  of  an  exception  by  defendant  to  an  order  deny- 
ing a  motion  by  him  to  quash  or  set  aside  the  service  of  a 
summons;^  although  a  contrary  doctrine  is  laid  down  in 
some  California  cases,  it  being  there  held  that  by  answer- 


5  Anderson  v.  Agnew,  38  Fla.  30, 
38,  20  So.  766. 

6  Glidden  v.  Packard,  28  Cal. 
649;  Belknap  v.  Charlton,  25  Ore. 
47,  34  Pac.  758. 

See,  also,  footnote  25,  this  sec- 
tion. 

"  Deidepheimer  v.  Brown,  8  Cal. 
339;  Layman  v.  Milton,  44  Cal. 
630;  Lander  v.  Fleming,  47  Cal. 
614;  Thomas  v.  Thomas,  98  Me. 
188,  56  Atl.   652. 

As  to  special  appearance,  see, 
post,   §§  263  et  seq. 

8  Deidesheimer  v.  Brown,  8  Cal. 
339;  Lyman  v.  Milton,  44  Cal.  628, 
635;  Kent  v.  West,  50  Cal.  185; 
Arroyo  Ditch  &  Water  Co.  v. 
Superior  Court,  92  Cal.  47,  52,  27 
Am.  St.  Rep.  94,  28  Pac.  54;  Mc- 
Donald V.  Agnew,  122  Cal.  448,  450, 
55  Pac.  125;  Converse  v.  Warren, 
4  Iowa  172;  Dickerson  v.  Burling- 
ton &  M.  R.  Co.,  43  Kan.  702,  23 
Pac.  936;  Block  v.  Clendenin,  3 
Mont.  49;  State  ex  rel.  Lane  v. 
District  Court,  51  Mont.  503,  506, 
L.  R.  A.  1916E.  1079,  154  Pac.  200; 


Miner  v.  Francis,  3  N.  D.  549,  553, 
58  N.  W.  343;  Chicago  Building 
&  Mfg.  Co.  V.  Pewthers,  10  Okla. 
724,  729,  63  Pac.  964;  Austin  Mfg. 
Co.  (F.  C.)  V.  Hunter,  16  Okla.  86, 
86  Pac.  293;  St.  Louis  &  S.  F.  R. 
Co.  V.  Clark,  17  Okla.  562,  565,  87 
PaV  430;  Kinkade  v.  Myers,  17 
Ore.  470,  472,  21  Pac.  557;  Sealey 
V.  California  I^umber  Co.,  19  Ore. 
94,  24  Pac.  197;  Benedict  v.  John- 
son, 4  S.  D.  387,  392,  57  N.  W.  66; 
Fisher,  Sons  &  Co.  v.  Crowley,  57 
W.  Va.  319,  4  Ann.  Cas.  282,  50 
S.  E.  424;  Harkness  v.  Hyde,  98 
U.  S.  476,  25  L.  Ed.  237;  Southern 
Pac.  Co.  V.  Denton,  146  U.  S.  202, 
206,  36  L.  Ed.  942,  13  Sup.  Ct.  Rep. 
44;  Lung  Chung  v.  Northern  Pac. 
R.  Co.,  10  Sawy.  17,  20,  19  Fed. 
256;  Stonega  Coal  &  Coke  Co.  v. 
Louisville  &  N.  R.  Co.,  139  Fed. 
271;  Sanderson  v.  Bishop,  171  Fed. 
771;  Foster  Milburn  Co.  v.  Chinn, 
122  C.  C.  A.  577,  202  Fed.  177. 

See,  also,  numerous  cases  cited 
in  10  Rose's  Notes  to  U.  S.  Rep., 
2d  ed.,  pp.  608-611. 


I  Code  PI.  and  Pr.— 22 


337 


§256 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


ing  to  the  merits,  after  a  motion  to  quash  has  been  denied, 
the  defendant  waives  his  objections  to  all  defects  in  the 
process  or  in  the  service  thereof,'' —  which  is  against  the 
overwhelming  weight  of  authority  and  the  better  reason, 
and  the  cases  have  not  been  followed  in  that  state.  A  de- 
fendant shall  be  deemed  to  appear  in  an  action,  and  can 
rightly  be  said  to  appear  in  an  action  only,  when  he 
answers,  demurs,  or  gives  the  plaintiff  a  written  notice  of 
his  appearance,  or  when  an  attorney  gives  notice  of  ap- 
pearance for  him/**  or  files  a  motion  asldng  for  affirmative 


Stonega  Coal  &  Coke  Co.  v. 
Louisville  &  N.  R.  Co.,  139  Fed. 
271. 

Contesting  on  writs  after  special 
appearance  as  waiver  of  objection 
to  jurisdiction  over  person. — See 
note,  16   L.  R.  A.   (N.  S.)    178. 

Filing  cross-complaint  and  ask- 
i  n  g  affirmative  relief  defendant 
waives  his  objection  and  submits 
his  person  to  the  jurisdiction  of 
the  court. — Austin  Mfg.  Co.  (F.  C.) 
V.  Hunter,  16  Okla.  86,  86  Pac.  293. 

Taking  part  in  trial  under  pro- 
test by  attorney  for  defendant 
who  makes  a  special  appearance  to 
test  validity  of  the  service  of  pro- 
cess, does  not  constitute  a  general 
appearance. — Dickerson  v.  Burling- 
ton &  M.  R.  Co.,  43  Kan.  702,  23 
Pac.  936. 

Waiver  of  objection  only  where 
defendant  pleads  to  the  merits  in 
the  first  instance. — Harkness  v. 
Hyde,  98  U.  S.  476,  25  L.  Ed.  237. 

Without  saving  exception  to 
order  of  court  overruling  motion, 
by  filing  general  demurrer,  de- 
fendant waives  all  objection  to 
want  of  jurisdiction  in  court  or  to 
infirmities  in  the  process  or  in  the 
service  thereof. — Polk  v.  Martin,  82 
Wash.  226,  144  Pac.  42. 

9  Desmond  v.  Superior  Court,  59 


Cal.  274;  Sears  v.  Starbird,  78 
Cal.  225,  231,  20  Pac.  547;  Clarke, 
In  re,  125  Cal.  388,  58  Pac.  22; 
Thompson  v.  Alford,  135  Cal.  52, 
66  Pac.  983.  See:  State  ex  rel. 
Meckey  v.  District  Court,  40  Mont. 
359,  135  Am.  St.  Rep.  622,  106 
Pac.  1098;  Corbett  v.  Physicians' 
Casualty  Co.,  135  Wis.  513,  16  L. 
R.  A.   (N.   S.)    177,  115  N.  W.  368. 

Ki  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  1014;  Vrooman  v.  Li  Po 
Tai,  113  Cal.  302,  45  Pac.  470: 
Pacific  Paving  Co.  v.  Vizelich,  141 
Cal.  4,  74  Pac.  352. 

Answer  not  purporting  to  be 
made  under  special  appearance, 
on  demurrer  or  motion  overruled, 
an  exception  to  the  order  made  on 
special  appearance  not  being 
saved,  waives  the  special  appear- 
ance and  constitutes  a  special 
appearance.— See:  Hobson  v.  New 
Mexico  &  A.  R.  Co.,  2  Ariz.  171, 
11  Pac.  545;  Walters  v.  Field,  29 
Wash.  558,  70  Pac.  66;  Morris  v. 
Healy  Lumber  Co.,  33  Wash.  451, 
74  Pac.  662:  Larsen  v.  Allan  Line 
Steamship  Co.,  37  Wash.  555,  80 
Pac.  181;  Gaffner  v.  Johnson,  39 
Wash..  437,  81  Pac.  859;  Hodges 
V.  Price,  38  Wash.  1,  80  Pac.  202. 

Appearance  of  taking  of  deposi- 
tions in  case  in  which  court  had 


338 


i 


eh.  XIII.] 


WJIAT    CONSTITUTES    .VPPEARAXCE, 


§  250 


relief,  and  the  fact  that  the  motion  is  made  orally  instead 
of  being  in  writing  does  not  affect  the  validity  of  the 
appearance. ^^     The  entry  of  a  general  appearance  and 


no     jurisdiction     on     account     of 
residence    of    parties,    and    objec- 
tion   previously    raised    by    de- 
murrer   which    is    undisposed    of, 
does    not    constitute    general    ap- 
pearance and  waiver  of  objection. 
— California  Pine   Box   &   Lumber 
Co.    V.    Mogan,    13    Cal.    App.    65, 
108   Pac.   882;    Willman    v.    Fried 
man,  4  Idaho  209,  95  Am.  St.  Rep 
59,    38    Pac.    937;    Lockabaugh    v 
Epperson,   28   Okla.   472,   114   Pac 
738;   Belknap  v.  Charlton,  25  Ore 
41,  34  Pac.  758;  Walla  Walla  Print 
Ing  &  Pub.  Co.  V.  Budd,   2  Wash 
Tr.  336,  5  Pac.  602;  McCoy  v.  Bell,  1 
Wash.    504,    20    Pac.    595;    Cornell 
University  v.  Denny  Hotel  Co.,  15 
Wash.  433,   46   Pac.  654;    Calhoun 
V.  Nelson,  47  Wash.  617,  92   Pac. 
448;     Springfield    Shingle    Co.    v. 
Edgecomb  Mill  Co.,  52  Wash.  620, 
35   L.   R.  A.   (N.   S.)    258,   101   Pac. 
233;    Steenstrup   v.    Toledo   Foun- 
dry &  Machine  Co.,  66  Wash.  101, 
Ann.    Cas.    1913C,    427,    119    Pac. 
16;    Elliott  v.  Toledo   Foundry   & 
Machine    Co.,    66    Wash.    701,    119 
Pac.     19;     Bank    of    Chadron     v. 
Anderson,  6  Wyo.  518,  48  Pac.  197. 

Appear  without  leave  of  court, 
at  any  time,  after  time  for  appear- 
ing has  passed,  where  no  rule  has 
been  taken  against  him,  and  de- 
fendant after  such  appearance  is 
not  in  default. — State  ex  rel.  Han- 
nebohl  v.  Superior  Court,  85  Wash. 
663.  149  Pac.  16. 

Appearance  may  be  without 
answering,  demurring,  or  giving 
written  notice  to  the  plaintiff. — 
Roethler  v.  Cummings,  84  Ore. 
442,  165  Pac.  355. 


Mere  agreement  to  appear  in  an 
action  and  waive  service  of  pro- 
cess does  not  constitute  an  ap- 
pearance  and  give  court 
jurisdiction. — Prescott  v.  Farm- 
ers' Nat.  Bank,  9  Kan.  App.  886, 
53  Pac.   769. 

— Written  agreement  to  appear 
executed  before  suit  i  s  com- 
menced as  required  by  statute, 
consenting  that  the  cause  may  be 
tried  in  a  designated  county,  and 
waiving  the  issuance  and  service 
of  process,  does  not  constitute  an 
appearance,  or  confer  jurisdiction 
on  the  court  of  the  county  named. 
— Bradley  v.  Harwi,  2  Kan.  App. 
272,  42  Pac.  411. 

Notice  of  appearance,  to  sat- 
isfy the  statute,  must  be  in  writ- 
ing, signed  by  the  defendant  or 
his  attorney,  informing  plaintiff 
that  the  defendant  has  appeared, 
or  does  appear,  in  the  action, 
either  generally  or  specially.  — 
Domer  v.  Stone,  27  Idaho  279,  149 
Pac.  505. 

Questioning  jurisdiction  of  court 
in  general  answer  to  the  merits 
does  not  affect  the  general  char- 
acter of  the  appearance. — Bank 
of  Chadron  v.  Anderson,  6  Wyo. 
518,  48  Pac.  197. 

11  Zobel  V.  Zobel,  151  Cal.  98, 
90  Pac.  191;  Everett  v.  Wilson,  34 
Colo.  476,  S3  Pac.  211;  Hudson 
Coal  Co.  V.  Hauf,  18  Wyo.  425. 
109   Pac.   21. 

Filed  after  court  adjourns  and 
not  acted  upon  does  not  consti- 
tute an  apiiearance. — Todd  v.  De 
la  Mott,  9  Colo.  222,  11  Pac.  90. 

Jurisdiction    of    court    requisite 


's:vj 


§256 


CODE  PLEADING  AND  PRACTICE, 


[Ft.  I, 


the  filing  of  a  printed  brief  and  argument,  by  a  defendant 
in  error,  according  to  the  usual  practice  of  the  appellate 
court,  is  equivalent  to  a  common  joinder  of  error  upon 
the  merits. ^2  Taking  and  perfecting  an  appeal  to  that 
stage  in  which  nothing  remains  to  be  done  but  the  minis- 
terial act  of  transmitting  the  papers,  constitutes  an  ap- 
pearance;^^ so  also  does  an  appeal  taken  to  a  court  in 
which  the  issues  of  law  and  fact  must  be  tried  de  novo, 
and  constitutes  a  waiver  of  all  objections  for  want  of 
jurisdiction  on  the  part  of  the  lower  court  over  the  person 
of  the  defendant.^'*    A  written  stipulation  entered  into  by 


to  giving  relief  asked,  appearance 
general. — Belknap  v.  Charlton,  25 
Ore.  41,  34  Pac.  758;  Winter  v. 
Union  Packing  Co.,  51  Ore.  07, 
93  Pac.  930. 

Motion  raising  question  not 
jurisdictional,  which,  can  be  heard 
on  a  general  appearance  only, 
constitutes  a  general  appearance. 
—Welch  V.  Ladd,  29  Okla.  93,  116 
Pac.    573. 

Motion  to  dismiss,  on  other 
than  jurisdictional  grounds,  in- 
cluded in  motion  to  quash  sum- 
mons, constitutes  a  general 
appearance. — Teater  v.  King,  35 
Wash.  138,  76  Pac.  688;  Bain  v. 
Thomas,  44  Wash.  382,  87  Pac. 
504;  Thorp  v.  Thomas,  44  Wash. 
698,  87  Pac.  504;  Hudson  Coal  Co. 
V.  Hauf,  18  Wyo.  425,  109  Pac.  21. 

Motion  to  dismiss  divorce  suit 
because  of  condonation,  consti- 
tute s  a  general  appearance. — 
Jones  V.  Jones,  59  Ore.  308,  117 
Pac.   414. 

Motion  to  set  aside  default 
judgment,  not  based  on  jurisdic- 
tional grounds,  but  to  let  in  a 
defense  on  the  merits,  consti- 
tutes a  general  appearance. — 
Welch  V.  Ladd,  29  Okla.  93,  116 
Pac.   573. 


Motion  to  vacate  order  for  tem- 
porary alimony  in  divorce  suit, 
constitutes  a  general  appearance. 
— Jones  V.  Jones,  59  Ore.  30S,  117 
Pac.  414. 

Moving  for  a  continuance  con- 
stitutes an  appearance  in  the 
action. — Zobel  v.  Zobel,  151  Cal. 
98,  90   Pac.   191. 

Special  appearance  converted 
into  general  where  defendant 
moving  to  vacate  default  because 
of  want  of  jurisdiction  by  reason 
of  defective  service  by  publica- 
tion, by  also  objection  complaint 
did  not  state  a  cause  of  action, 
and  that  the  summons  did  not 
conform  to  demand  in  complaint. 
— Security  Loan  &  Trust  Co.  v. 
Boston  &  R.  S.  Fruit  Co.,  126  Cal. 
418,   58   Pac.   941,    59    Pac.    296. 

12  Haley  v.  Elliott,  20  Colo.  199, 
37  Pac.  27. 

13  Cates  V.  Mack,  6  Colo.  401. 
Prosecuting    error   to   set   aside 

orders  for  allowances  to  receiver 
of  insolvent  bank,  constitutes  gen- 
eral appearance  by  stockholders 
participating  in  prosecuting  error. 
— Bank  of  Newcastle,  In  re,  15 
Wyo.  501,  89  Pac.  1035. 

14  Fowler  v.  Fowler,  15  Okla. 
529,  82  Pac.  923;  Deming  Inv.  Co. 


340 


ch.  XIIL] 


WHAT    CONSTITUTES   APPEARANCE. 


§256 


a  defendant  with  the  attorney  of  the  plaintiff  and  the 
attorney  of  a  co-defendant  consenting  that  the  action  may 
be  tried  in  another  county,  constitutes  an  appearance.^^ 
A  notice  signed  by  attorneys  and  filed  mth  the  clerk  after 
a  complaint  has  been  filed,  stating  that  'Sve  have  been 
retained  by  and  hereby  appear  for  the  above-named  de- 
fendant in  the  above-entitled  cause,"  is  a  sufficient  ap- 
pearance of  the  defendant,  and  is  a  waiver  of  summons. ^^ 
But  the  mere  signing  of  the  name  of  a  firm  of  attorneys 
at  the  end  of  an  affidavit  presented  by  the  defendant  at 
the  hearing  of  a  motion  for  an  order  of  the  court,  to  which 
affidavit  no  signature  of  attorneys  is  required,  does  not 
constitute  the  actual  bona  fide  appearance  of  such  attor- 
neys for  the  defendant.^"  The  filing  of  a  general  demur- 
rer is  an  appearance  in  the  action,  and  cures  any  defect 
in  the  process  or  in  the  services  thereof,^^  except  jurisdic- 


V.  Love,  31  Okla.  146,  120  Pac. 
635;  Griffin  Co.  (H.  L.)  v.  Howell, 
38  Utah  357,  113  Pac.  326. 

15  Jones  V.  Wolverton,  15  Wash. 
590,    47    Pac.    36. 

Stipulation  extending  time  to 
answer  signed  by  attorney  author- 
ized to  represent  defendant,  con- 
stitutes a  general  appearance.— 
Multnomah  Lumber  &  Box  Co.  v. 
Weston  Basket  &  Barrel  Co.,  54 
Ore.  22,  99  Pac.  1046,  102  Pac.  1. 

ic  Dyer  v.  North,  44  Cal.  157. 

As  to  autliority  of  attorney  to 
bind  client  in  writing  only,  see 
Kerr's  Cyc.  Cal.  Code  Civ.  Proc, 
§283. 

As  to  appearance  by  attorney, 
see,   post,    §§  271-274. 

Contesting  motion  for  ciiange  of 
venue,  constitutes  a  general 
appearance  of  the  defendant,  con- 
fers jurisdiction  over  his  person 
and  waives  defects  in  process  and 
service  thereof. — Jones  v.  Jones, 
59  Ore.  308,  117  Pac.  414. 


17  Benton  v.  Budd,  120  Cal.  329, 
52  Pac.  851. 

IS  Clarke,  In  re,  125  Cal.  388. 
58  Pac.  22;  Olcese  v.  Justices' 
Court,  156  Cal.  82,  103  Pac.  317; 
Kauter  v.  Entz,  8  Kan.  App.  788, 
61  Pac.  818;  Sweeney  v.  Schultes, 
19  Nev.  53,  6  Pac.  44,  8  Pac.  768; 
Williams  v.  Miller,  1  Wash.  Tr. 
88;  State  ex  rel.  Hannebohl  v. 
Superior  Court,  85  Wash.  663,  149 
Pac.  16. 

Demurrer  on  hypothesis  court 
has  jurisdiction  of  the  cause  and 
person,  is  a  general  appearance 
which  waives  all  defects  and  ir- 
regularities in  process  or  in  its 
s-^rvice. — Smith  v.  Day,  39  Ore. 
531,  64  Pac.  812,  65  Pac.  1055. 

Filing  demurrer  to  cross  com- 
plaint is  an  appearance  by  plain- 
tiff to  such  cross-complaint.  — 
Willman  v.  Friedman,  4  Idaho 
209,  95  Am.  St.  Rep.  59,  38  Pac. 
937. 


341 


256 


CODE   PLEADING   AND    PRACTICE. 


[Pt.I, 


tional  defects.^'-*  Entering  into  a  written  stipulation  that 
plaintiff  could  enter  judgment  at  any  time,  conditioned 
that  defendant  was  to  be  granted  a  stay  on  certain  pay- 
ments being  made,  constitutes  a  sufficient  appearance  ;-'" 
but  a  mere  statement  by  the  defendant  that  the  plaintilf 
need  not  serve  any  papers,  but  could  take  judgment  in 
the  case  at  any  time,  does  not  amount  to  an  appearance 
in  the  action.-^  On  motion  to  quash  process  by  defendant 
not  served,  contesting  motion  of  plaintiff  for  leave  to 
amend  the  return  of  service,  constitutes  an  appearance 
in  the  cause  and  submission  to  the  jurisdiction  of  the 
court;--  and  so  also  does  filing  a  motion  to  set  aside  a 
sheriff" 's  sale  on  foreclosure;-^  but  notice  of  exception  to 
sureties  of  plaintiff  on  undertaking  in  attachment,  and 
demanding  that  they  justify,  does  not  constitute  an  ap- 
pearance in  the  action  ;'-^  or  notice  of  motion  to  dissolve 
attachment  ;-^  nor  does  a  motion  to  dissolve  a  temporary 


19  As  to  jurisdictional  defects, 
see,  ante,   §  38. 

■20  Cooper  v.  Gordon.  125  Cal. 
296,  57  Pac.  1006. 

Stipulation  for  period  to  settle 
claim  does  not  constitute  an 
appearcnce. — Washington  County 
Land  &  Devel.  Co.  v.  Weiser  Nat. 
Bank,  26  Idaho  717,  146  Pac.  116. 

Stipulation  plaintiff  may  amend 
comiilaint,  constitutes  a  general 
ai)pearance.  —  Robertson  M  o  r  t- 
gage  Co.  V.  Thomas,  60  Wash.  514, 
111  Pac.  795. 

21  Siskiyou  County  Bank  v. 
Hoyt,  132  Cal.  81,  64  Pac.  118. 

•22  Stubbs  V.  McGillis,  44  Colo. 
138,  130  Am,  St.  Rep.  116,  18 
L.  R.  A.  (N.  S.)  405,  9  Pac.  1005. 

23  Jones  V.  Standiferd,  69  Kan. 
513,  77  Pac.  271. 

24  Salmonson  v.  Streiffer,  13 
Cal.  App.  397,  110  Pac.  145. 

25  Glidden    v.    Packard,    28    Cal. 


651 ;  Meyer  v.  Brooks,  29  Ore.  203, 
54  Am.   St.   Rep.  790,   44  Pac.   281. 

See,  also,  footnote  6,  this  sec- 
tion. 

Dismissal  of  cause  also  asked, 
constitutes  a  general  appearance. 
—Everett  v.  Wilson,  34  Colo.  476, 
83   Pac.   211. 

Execution  on  forthcoming  bond 
in  attachment,  procured  by  the 
defendant,  does  not  constitute  a 
general  appearance.  —  Winter  v. 
Union  Packing  Co.,  51  Ore.  97,  93 
Pac.   930. 

Giving  bond  for  discharge  of 
an  attachment  required  by  statute 
on  motion  to  discharge  consti- 
t  u  t  e  s  a  general  appearance. — 
Leusch  V.  Nickel,  16  N.  W.  28, 
113  Pac.  595;  Roether  v.  Cum- 
mings,   84   Ore.   442.   165   Pac.   335. 

Motion  to  discharge  on  merits, 
— as  on  insufficiency  of  affidavit 
for  the  attachment, — constitutes  a 


342 


ell.  XIII.]  KINDS    OF    APPEARANCE.  §  257 

injunction.-"  A  defendant  can  not  appear  in  an  action, 
so  as  to  give  the  court  jurisdiction  of  his  person,  except 
by  answering  or  demurring,  or  giving  plaintiff  written 
notice  that  he  appears  ;-"  merely  giving  notice  the  purpose 
of  which  is  not  to  give  notice  of  appearance,  but  to  give 
notice  of  a  step  taken  or  about  to  be  taken,  does  not  con- 
stitute an  appearance  in  the  cause  within  the  statute. -'- 
Where  the  record  shows,  in  general  terms,  the  appear- 
ance of  parties,  the  appearance  will  be  confined  to  those 
parties  served  with  process. -''  In  those  cases  in  which 
the  first  of  a  series  of  pleas  designates  for  whom  of  sev- 
eral defendants  counsel  appear,  the  use  in  subsequent 
pleas  of  the  words,  "the  defendants,"  includes  the  de- 
fendants served  and  appearing  only,  not  the  defendants 
not  served  and  not  appearing.^"  Filing  petition  and  bond 
for  removal  to  federal  court  has  been  held  not  to  consti- 
tute an  appearance  in  the  action. ^^ 

§  257.     As    TO    KINDS    OF    APPEARANCE In    GENEKAL.      Au 

appearance  in  an  action,  whether  by  the  party  or  by  his 

general     appearance. — Gorham     v.  9    111.     (4    Gilm.)     119;     Violet    v. 

Tanquerry,    58    Kan.    233,   48   Pac.  Waters,    24   Ky.    (1   J.   J.    Marsh.) 

916;     Raymond    v.    Nix,    5    Okla.  303;    Hubbard    v.    Dubois,    37    Vt. 

656,  49   Pac.   1110.  94,  86  Am.  Dec.  690. 

2C,Donlan     v.     Thompson    Falls  :^i  Coombs     v.     Parish.     6    Colo. 

Copper  &  Mill.  Co.,  42  Mont.  257,  296;  State  v.  American  Surety  Co.. 

112  Pac    445  ^6  Idaho  652,  Ann.  Cas.  1916E,  209, 

145  Pac.  1097. 


27  Steinbach  v.  Leese,  27  Cal. 
295,  297;  Salmonson  v.  Streiffer, 
13  Cal.  App.  398,   110   Pac.   146. 


Attempting    removal   of  a  cause 
not  removable  defendant  takes  his 
chances  in  thus  becoming  an  actor 
28  Id.;    Glidden    v.    Packard,    28      ^^^  ^^^j.^^^  ^^  advantage   to  the 

Cal.    651.  defendant,  is  the  settled  doctiine 

2;>  Hirschfield     v.     Franklin,     6  i„    Idaho.— See    Finney    v.    Amer- 

Cal.    607;     Chester    v.    Miller,    13  jcan  Honding  Co.,  13  Idaho  TVH.  90 

Cal.  558;    Kelly  v.  Van  Austin,   17  pac.    859,    91     Pac.    318;     .Mills    v. 

Cal.    564;    Gargan    v.    School    Dis-  American    Bonding    Co..    13    Idalu) 

trict,  4  Colo.  53,  57;   Seedhouse  v.  55(5^  gj  pac.  381;   .Morbeck  v.  Hrad- 

Broward,  34   Fla.   500,   528,  16   So.  ford-Kennedy  Co.,  19  Idaho  83.  11:: 

425.  Pac.  89;  State  v.  American  Surety 

:?o  Gargan   v.    School   District,    4  Co.,  26  Idaho  652,  Ann.  Cas.  1916E, 

Colo.  53,  57;    Barloin  v.  Edwards,  209,  liS  Pac.  1097. 

343 


§  257  CODE   PLEADING   AND   PRACTICE.  [Pt.  T, 

attorney,  is  either  (1)  general,  to  contest  the  cause  on  its 
merits,  or  (2)  special,  to  attack  for  jurisdictional  defects 
any  step  in  the  proceedings  of  an  action.  Where  the  ap- 
pearance is  not  shown  by  proper  entry  in  the  record,^  by 
statements  contained  in  the  paper  filed  or,  possibly,  by 
oral  statements  made  to  the  court  at  the  time,  to  be  spe- 
cial, it  will  be  considered  a  general  appearance.  There 
may  be  a  general  appearance  of  a  defendant  at  any  time, 
without  leave  of  court,  although  the  time  in  which  to  ap- 
pear has  elapsed,  where  no  rule  has  been  taken  against 
him,  and  the  defendant  will  not  thereafter  be  in  default,- 
unless  he  fails  to  plead.  Special  appearance  for  the  pur- 
pose of  contesting  the  jurisdiction  of  the  court  over  the 
person  of  the  defendant,  is  sufficient  to  enable  a  contest  as 
to  the  sufficiency  of  the  affidavit  filed  for  an  order  of  serv- 
ice of  process  by  publication  of  the  summons.^  Special 
appearance  to  move  to  dismiss  on  jurisdictional  grounds 
is  not  converted  into  a  general  appearance  by  a  subse- 
quent plea  in  abatement  on  the  same  grounds.* 

Character  of  appearance  does  not  depend  upon  the  form 
of  the  procedure,  but  upon  the  substance  of  such  appear- 
ance and  the  relief  sought  thereby.^  In  determining 
whether  an  appearance  was  special  or  general,  the  con- 
trolling factor  is  the  question  whether  the  sole  object  was 
to  question  the  court's  jurisdiction  over  the  person  of  the 
defendant,  irrespective  of  defendant's  intention  to  make 
the  appearance  special,  and  irrespective  of  any  stipula- 
tion or  statement.^  Thus,  an  appearance  is  general,  not- 
■\\ithstanding  any  reservations,  when  the  relief  sought 

1  Godfrey  v.  Douglas  County,  28  4  Winter  v.  Union  Packing  Co., 
Ore.  440,  43  Pac.  171.  51  Ore.  97,  93  Pac.  930. 

2  State  ex  rel.  Hannebahl  v.  Su-  5  Roethler  v.  Cummings,  84  Ore. 
perior    Court,    85    Wash.    663,    149  442,  165  Pac.  355. 

Pac.  16.  6  Sit  You  Gune  v.  Hurd,  61  Ore. 

3  Columbia  Screw  Co.  v.  Warner      182,  120  Pac.  737,  1135. 
Lock  Co.,  138  Cal.  445,  71  Pac.  498. 

344 


ch.  XIII.]  GENERAL   APPEARANCE.  §  258 

thereon  presupposes  that  the  person  moving  is  a  party 
to  the  action.^ 

§  258.   General  appeaeance^ — What  constitutes. 

We  have  already  discussed,  in  a  general  way,  what  con- 
stitutes a  general  appearance  in  a  case,-  and  it  remains 
to  give  in  this  and  the  following  sections  concrete  in- 
stances of  what  does  and  what  does  not  constitute  a  gen- 
eral appearance  in  an  action.  Acceptance,  by  defendant's 
attorney,  of  ser^dce  of  a  motion  for  an  order  for  the  sale 
of  property  attached  in  a  suit,  does  not  constitute  a  gen- 
eral appearance  in  the  action.^  A  motion  for  security 
for  costs,^  or  an  affidavit  filed  by  a  defendant  for  a  con- 
tinuance, no  further  action  being  taken,  does  not  consti- 
tute a  general  appearance.^  Execution  procured  by 
defendant  to  issue  on  forthcoming  bond  in  attachment, 
does  not  constitute  a  general  appearance  in  the  cause.** 
An  order  of  the  court  continuing  the  cause,  without  objec- 
tion on  the  part  of  the  defendant,  does  not  constitute  a 
general  appearance  in  the  cause  by  the  defendant;"  and 
a  recitation  by  the  clerk  in  the  transcript  upon  a  writ  of 
error  that  defendant  appeared  by  some  unnamed  attor- 
ney, does  not  constitute  a  general  appearance.^  The  pre- 
sumption  is  that  an  apjjearance  was  a  general  appearance, 
where  the  court  had  jurisdiction  of  the  subject-matter, 
and  the  record  fails  to  show  that  the  appearance  was  a 
special  appearance.''  A  general  appearance  once  entered 
is  presumed  to  continue  until  the  end  of  the  cause,  in  tlie 

7  Clarke,  In  re,  125  Cal.  302,  57  4  Dower  v.  Stone,  27  Idaho  21,9, 

Pac.  1010.  149  Pac.  505. 

r.  Hoyt  V.  Macon,  2  Colo.  113. 
«  See,  ante,  §  256,  footnote  25. 
7  Talpev  V.  Doane,  3  Colo.  22. 
Forms   of   Pleading    and    Practice,  ^  Anderson  v.  Agnew.  38  Fla.  30. 

vol.  2,  p.  1823.  Form  No.  1108.  „g    20  So    766 

•-'  See,  ante.  §  256.  -i  Roethler  v.  Cummings,  84  Ore. 

3  Id.,  footnote  2.  442,  165  Pac.  355. 

345 


1  For  form  of  notice  of  general 
appearance,  see  Jury's  Adjudicated 


§  259  CODE  PLEADING  AND  PRACTICE.  [Ft.  I, 

absence  of  a  statute  or  a  rule  of  court  requiring  further 
notice  on  the  part  of  the  defendant.^*' 

§  259.    ■ A  STEP  TAKEN  IN  THE  CAUSE.      Wc  haVC 

already  seen  that  it  is  not  every  step  taken  in  a  cause 
that  constitutes  a  general  appearance  therein ;  e.  g.  filing 
affidavit  for  continuance/  or  issuing  execution  on  forth- 
coming bond  in  attachment.-  Other  examples  will  be 
found  in  the  following  sections.  Applying  for  time  in 
which  to  answer  does  not  constitute  a  general  appear- 
ance and  a  waiver  of  defects  and  irregularities  in  process 
or  the  service  thereof;-^  but  an  application  for  a  release 
of  an  attachment  and  giving  the  bond  required  by  statute 
in  order  to  and  on  securing  a  release,  is  a  general  appear- 
ance and  a  waiver  of  all  objections  as  to  jurisdiction.'* 
Filing  an  answer  on  the  merits,^  or  a  general  demurrer,*^ 
or  a  demurrer  the  disposition  of  which  presupposes  juris- 
diction on  the  part  of  the  court,  is  a  general  appearance. 
Handing  copy  of  an  answer  by  defendant's  counsel  to 
plaintiff's  counsel  in  chambers,  with  the  assurance  that 
the  original  would  be  filed,  and  using  such  answer  in  the 
hearing  of  a  motion  to  discharge  a  receiver  appointed  in 
the  action,  constitutes  a  general  appearance.^  Obtaining 
a  copy  of  the  complaint  from  the  clerk  of  the  court  and 
having  costs  taxed  to  the  plaintiff  under  provisions  of  the 

10  Reed  V.  Brandenburg,  72  Ore.  39    Pac.    1002;    Gray   v.   Gates,   37 

435,  143  Pac.  989.  Wis.   614;    Hupfeld  v.   Automaton 

1  See,  ante,  §  258,  footnote  4.  Piano  Co.,  66  Fed.  788. 

2  See,  ante,  §  256,  footnote  25.  4  Roethler  v.  Cummings,  84  Ore. 

3  See  Fonville  v.  Monroe,  74  111.  442,  i65  Pac.  335. 

126;  Anderson  v.  Burchett,  48  Kan.  g^^^  ^j^^    ^^^^    g  256,  footnotes 

781,    30    Pac.    174;     State    ex    rel.      ^^  ^^^  25 
Mackey  v.  District  Court,  40  Mont. 
359,  135  Am,  St.  Rep.  622,  106  Pac. 
1098;    Orr  v.   Seaton,   1    Xeb.   105; 
State  ex  rel.  Curtis  v.  McCullough,  «  Id.,- footnote  18. 

3    Nev.    202;     Mulhearn    v.    Press  "Powell    v.    National    Bank    of 

Pub.  Co.,  53  N.  J.  L.  150,  20  Atl.  Commerce,  19  Colo.  App.  57,  74 
760;  Mayer  v,  Mayer,  27  Ore.  133,      Pac.  536. 

346 


;"'  See,    ante.    §  256,    footnotes    8 
and  10. 


ch.  XIII.]  APPEARANCE — MOTION    IN    ACTION.  §  260 

statute,  constitutes  a  general  appearance.*  Filing  a  peti- 
tion for  a  new  trial,  based  in  part  on  want  of  jurisdic- 
tion of  the  court,  constitutes  a  general  appearance  and  a 
waiver  of  objections ;''  so  also  does  prosecuting  error,^^* 
or  a  stipulation  affecting  the  proceedings  in  the  cause,' ' 
as  a  stipulation  for  time  to  answer. '- 

§  260. Motion  in  the  action.    A  motion  filed 

in  an  action  may  or  may  not  constitute  an  appearance  in 
the  cause,  depending  upon  the  character  of  the  motion 
and  of  the  relief  sought.^  Appearance  to  contest  a  mo- 
tion for  change  of  the  venue,-  or  for  the  custody  of  chil- 
dren in  a  suit  for  a  divorce,  constitutes  a  general  appear- 
ance;^ so  also  does  contesting  motion  for  permission  to 
amend  affidavit  in  attachment."*  Appearance  to  move  for 
a  continuance  constitutes  a  general  appearance  f  so  does 
appearance  to  file  motion  to  quash  summons  and  dismiss 
action,*^  or  for  a  new  trial,  after  judgment,  not  based  on 
non-jurisdictional  grounds;'  or  to  dissolve  an  attachment 
on  the  merits;"*  or  to  set  aside  a  default  judgment,  not 
made  on  jurisdictional  grounds,  but  to  let  in  a  defense." 
Filing  any  motion  not  going  to  the  jurisdiction  of  the 
court  only,  whicli  can  be  heard  on  general  appearance 
only,  constitutes  a  general  appearance."* 

s  Brockway   v.   W.   &    T.    Smith  3  Abercrombie    v.    Abercrombie, 

Co.,  17  Colo.  App.  96,  66  Pac.  1073.  64  Kan.  29,  67  Pac.  539. 

!>  Neosho  Valley  Inv.  Co.  v.  Cor-  4  Rurnham    v.    Lewis,    65    Kan. 

nell,  60  Kan.  282,  56  Pac.  475.  48I,  70  Pac.  337. 

10  See,  ante,  §  253,  footnote  13.  _,  ^obel  v.  Zobel,  151  Cal.  98,  90 

uid.,  footnote  20.  p^^,     j91       ggg    sheldon    v.    Land- 

\2  Multnomah  Lumber  &  Box 
Co.  V.  Weston  Basket  &  Barrel 
Co.,  54  Ore.  22,  99  Pac.  1046,  102 
Pac.  1. 

Stipulation    by   party   amounting  t  Trugeon  v.  Gallamore,  28  Okla. 

to  general  appearance. — See,  ante,  "^2,  117  Pac.  797. 

§  256,  footnotes  15  and  20.  ^  See,  ante,  §  256,  footnote  25. 

1  See,  ante,  §  256,  footnote  11.  »  Welch  v.  Ladd,  29  Okla.  93,  116 

■1  Jones  V.  Jones,  59  Ore.  308,  117  Pac.  573. 

Pac.  414.  1"  See,  ante,  §  256,  footnote  11. 

347 


wehr,  159  Cal.  778,  116  Pac.  44. 

1;  Teater  v.  King,  35  Wash.  138, 
76  Pac.  6S8. 


§§  261,  262       CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

§  261. On  jukisdictional,  grounds.  Ap- 
pearance upon  a  motion  confined  to  the  single  object  of 
enforcing  the  defendant's  statutory  right, — e.  g.  motion 
to  quash  a  service  of  process,  or  for  security  for  costs, 
or  to  dismiss  an  appeal, — although  not  special  in  form, 
does  not  constitute  a  general  appearance  and  a  waiver  of 
rights.^  A  special  appearance  to  move  a  dismissal  on 
jurisdictional  grounds  only,  never  constitutes  a  general 
appearance.-  Thus,  an  appearance  to  object  to  jurisdic- 
tion and  to  move  to  quash  an  attachment  does  not  con- 
stitute a  general  appearance,^  and  neither  does  an 
appearance  to  move  the  dismissal  of  a  cause  because  the 
process  was  not  issued  within  the  time  required  by 
statute.* 

§  262. On   other  than   jurisdictional, 

GROUNDS.  An  appearance  to  move  the  court  for  relief  on 
other  than  jurisdictional  grounds,  or  on  jurisdictional 
and  nonjurisdictional  grounds,  constitutes  a  general  ap- 
pearance in  the  action.^  Thus,  an  appearance  asking  for 
relief  grantable  on  general  appearance  only,  subjects  the 
defendant  to  the  jurisdiction  of  the  court  for  all  pur- 
poses ;-  so  does  asking  a  relief  that  can  be  granted  when 
the  court  has  jurisdiction  only  f  or  a  motion  raising  the 
legal  grounds  on  which  the  action  is  based  and  contro- 
verting them  ;"*  or  a  motion  to  set  aside  a  default  judgment 
based  on  jurisdictional  and  nonjurisdictional  grounds;^ 

1  Crary   v.   Barber,   1   Colo.   172,  i  Zobel  v.  Zobel,  151  Cal.  98,  90 

174;   Law  v.  Nelson,  14  Colo.  412,  Pac.  191. 

24    Pac.    2;    Domer    v.    Stone,    27  o  Felts  v.  Boyer,  73  Ore    83.  144 

Idaho   279,   149    Pac.   505;    Nye  v.  p^^   420 
Liscomb,     38     Mass.     (21     Pick.) 

263;    Malcolm   v.   Rogers,   1   Cow.  ^  Belknap   v.    Charlton.    25    Ore. 

.j^   Y  )  1  ^1'    2^    P^^-    '^^^-      S^^   Winter   v. 

%■  Thompson    v.    Greer,    62    Kan.  ^nion  Packing  Co..  51  Ore.  97,  93 

Par*     Q?0 

522,  64  Pac.  48;   Meyer  v.  Brooks,  ■^'^^-  ^""• 

29  Ore.  203,  54  Am.  St.   Rep.   790.  ^  Thompson  v.  Pfeiffer,  66  Kan. 

44  Pac.  28L  368.  71  Pac.  828. 

3  See.  ante.  §  256,  footnote  25.  "<  Barnett  v.  Holyoke  Mut.  Fire 

4  Coombs  V.  Parish,  6  Colo.  296.  Ins.  Co.,  78  Kan.  630,  97  Pac.  962. 

348 


eh.  XIII.]  SPECIAL   APPEARANCE.  §  263 

or  a  motion  to  vacate  a  default  judgment  on  tlie  ground 
of  want  of  jurisdiction  and  also  on  nonjurisdictional 
grounds ;''  or  a  motion  to  vacate  an  order  for  temporary 
alimony  in  an  action  for  a  divorce.'^  Objection  to  a  de- 
fault judgment  on  the  ground  that  it  is  unsupported  by 
the  complaint,  constitutes  a  general  appearance.* 

§  263.  Special  appeakance^ — In  general.  We  have 

already  seen  that  a  defendant  may  appear  in  a  case  either 
generally  or  specially.-  A  special  appearance  does  not 
cure  a  defect  in  the  process  or  in  the  service  thereof,^  or 
waive  an  objection  to  the  jurisdiction  of  the  court/  and 
does  not  subject  the  person  of  the  defendant  to  the  juris- 
diction of  the  court  for  any  purpose  other  than  that  of 
such  appearance.  Objection  to  the  jurisdiction  of  the 
court  because  of  the  insufficiency  of  the  process  or  the 
illegality  or  irregularity  of  the  service  thereof  is  waived 
only  in  those  cases  in  which  the  defendant  pleads  to  the 
merit  in  the  first  instance.^  A  special  appearance  is  made 
when  a  person,  or  his  attorney  for  him,  seeks  to  obtain 
an  order  vacating  some  proceeding  alleged  to  have  been 
taken  in  an  unauthorized  manner,^  Thus,  a  person  may 
specially  appear  to  challenge  the  jurisdiction  of  the  court, 
either  by  motion"^  or  plea  in  abatement^  where  the  want 

6  Kaw  Valley  Life  Ins.  Co.  v.  Western  R.  Co.  v.  Brow,  164  U.  S. 
Lemke,  40  Kan.  142,  661,  19  Pac.  271,  280,  41  L.  Ed.  435,  17  Sup.  Ct. 
337,  20  Pac.  512.  Rep.  128. 

7  Jones  V.  Jones,  59  Ore.  308,  117  5  Harkness  v.  Hyde,  98  U.  S.  476, 
Pac.  414.  25  L.  Ed.  237. 

8  Maclay  Co.  v.  Meads,  14  Cal.  See,  also,  ante,  §  256,  footnote  8, 
App.   363,   112   Pac.   195,   113   Pac.  and     numerous     cases     cited,     10 

1  For  form  of  special  appear-  Rose's  Notes  on  U.  S.  Reps.,  2d 
ance,  see  Jury's  Adjudicated  Forms      ed.,  pp.  608-611. 

of  Pleading  and  Practice,  vol.  2,  p.  «  Multnomah  Lumber  &  Box  Co. 

1823,  Form  No.  1107.  v.  Weston  Basket  &  Barrel  Co.,  54 

2  See,  ante,  §  257.  Ore.  22,  99  Pac.  1046,  102  Pac.  1. 

3  Steele  v.  Harkness,  9  W.  Va.  7  As  to  motion  attacking  juris- 
24.  diction  of  court,  see,  ante,  §  224. 

4  Goldey  v.  Morning  News  Co.,  s  As  to  plea  in  abatement  attack- 
156  U.  S.  518,  520.  39  L.  Ed.  517,  ing  jurisdiction  of  court,  see,  ante, 
518,  15  Sup.  Ct.  Rep.  560;  Wabash  §  223. 

349 


§  264  CODE  PLEADING  AND  PRACTICE.  [Pt.  T, 

of  jurisdiction  does  not  appear  on  the  face  of  the  record, 
without  subjecting  himself  to  the  jurisdiction  of  the  court 
for  any  other  purpose  f  as  a  special  appearance  by  a  non- 
resident defendant,  for  the  purpose  of  making  a  motion 
to  set  aside  a  judgment  by  default  entered  against  him,'" 
or  an  appearance  specially  for  the  purpose  of  having  sot 
aside  a  service  of  process  which  was  fatally  defective-/' 
or  for  the  purpose  of  moving  to  strike  out  an  amended 
complaint,^-  and  also  for  asking  for  an  extension  of  time 
in  which  to  move  or  plead,  until  the  latter  motion  is  acted 
on,  does  not  make  an  appearance  such  as  to  waive  the 
service  of  the  process  and  amended  complaint.^'*  So, 
where  defendants  appeared  specially,  and  objected  to  the 
jurisdiction  of  the  court  on  the  ground  that  the  summons 
was  not  sufficient  to  confer  jurisdiction,  and  after  the 
court  had  overruled  this  objection,  they  appeared  gener- 
ally, and  answered — it  was  held  that  such  appearance  was 
not  a  voluntary  appearance,  and  did  not  waive  the  de- 
fendants' objection  to  the  jurisdiction  of  the  court  ;'^  but 
this  doctrine  is  denied  in  some  jurisdictions.^^ 

§264. What  CONSTITUTES.  An  appearance  i:i 

person^  or  by  attorney-  to  object  to  the  jurisdiction  of 
the  court,^  or  to  move  to  set  aside  a  void  judgiuent,^  or 
to  set  aside  or  vacate  a  judgment  or  decree  because  of 
improper  or  insufficient  service  of  process,  is  a  special 
appearance,  and  defendant  does  not  submit  himself  to  the 
jurisdiction  of  the  court  for  r.ny  other  purpose  than  the 
purpose  of  that  application  or  motion.^    Moving  the  court 

'.•Winter  v.  Union  Packing  Co.,  i5ld.,  footnote  9. 

51  Ore.  97,  93  Pac.  930.  i  As    to    appearance    in    person, 

10  Paxton  V.  Daniell,  1  Wash.  19,  see,  post,  §§  267-270. 

23  Pac    441  -  ^^  *°  appearance  by  attorney, 


11  Kinkade  v.  Myers,  17  Ore.  470, 
21  Pac.  557. 


see,  post,  §§  271-274. 

•?  Felts  V.  Boyer,  73  Ore.  83,  144 
Pac   420 

12  Powers  V.  Braly,  75  Cal.  237,  4  Paxton  v.  Daniell,  1  Wash.  19. 

17  Pac.  197.  23  Pac.  441. 

i-'^Id.  5  Felts  V.  Boyer,  73  Ore.  83,  144 

14  See,  ante,  §  256,  footnote  8.  Pac.  420. 

350 


f 


ell.  XIII.]  SPECIAL    BECOMES    GEXEKAL    WHEN.  §  2l)5 

to  dismiss  an  action  on  jurisdictional  grounds, — e.  g.  on 
ground  court  has  no  jurisdiction  of  the  person  of  tlie 
defendant  because  there  has  been  no  service,  or  an  insuf- 
ficient or  an  illegal  service,  of  process, — limiting  the 
appearance  to  the  purposes  of  such  motion,  is  a  special 
appearance;*"'  and  a  special  appearance  to  move  a  dis- 
missal on  jurisdictional  grounds,  and  a  subsequent  plea 
in  abatement  on  the  same  grounds,  is  still  a  special  ap- 
pearance.'^ In  short,  any  appearance  to  attack  an  act  or 
a  proceeding  because  unwarranted  or  unauthorized,  and 
to  move  the  statutory  right  of  the  defendant  to  have 
it  set  aside,  vacated  or  annulled,  without  asking  any 
affirmative  relief,  is  a  special  appearance.'* 

'§>  265. When   becomes  general  appearance. 

A  special  appearance  to  move  a  dismissal  of  the  action 
on  jurisdictional  grounds  is  not  changed  into  a  general 
appearance  by  a  subsequent  plea  in  abatement  on  the 
same  ground;^  and  a  special  appearance  to  object  to  the 
jurisdiction  of  the  court  to  make  or  enter  any  order  affect- 
ing the  rights  of  the  party  so  appearing,  moving  the  court 
to  quash  the  notice  as  to  such  party  does  not  convert  the 
appearance  into  a  general  one.-  A  special  appearance  to 
question  the  jurisdiction  of  the  court  and  move  a  dismissal 
of  the  action  on  any  jurisdictional  ground,  or  to  move  to 
set  aside  a  default  judgment,  is  converted  into  a  general 
appearance  by  answering  to  the  merits-*  without  saving  an 
objection  to  the  order  overruling  his  motion;^  or  without 
saving    an    exception,    filing    a    cross-complaint    asking 

6  Anglo-American  Packing  &  Pro-  i  Winter  v.  Union   Packing  Co., 
vision  Co.  v.  Turner  Casing  Co.,  34      51  Ore.  97,  93  Pac.  930. 

Kan.  340,  8  Pac.  403;  Green  v.  See,  also,  ante,  §  257,  footnote  4. 
Green,  42  Kan.  654,  16  Am.  St.  2  State  ex  rel.  Hofnian  v.  Super- 
Rep.  510,  22  Pac.  730.  ior  Court,  88  Wash. -612,  152  Pac. 

7  Winter  v.   Union   Packing  Co.,  315. 

51  Ore.  97,  93  Pac.  930.  :?  Thompson   v.   Alford,   135   Cal. 

See,  ante,  §  257,  footnote  4.  52,  66  Pac.  983. 

a  See,  ante,  §  257,  footnotes  5-7.  i  See,  ante,  §  256,  footnote  8. 

351 


§  266  CODE  PLEADING  AND  PRACTICE.  [ft.  I, 

affirmative  relief,^  or  filing  a  general  demurrer.®  A  special 
appearance  to  move  the  dissolution  of  an  attachment  is 
converted  into  a  general  appearance  by  also  moving  tho 
dismissal  of  the  cause. ^  Where  an  attorney  appears  spe- 
cially to  apply  for  a  continuance,  on  his  motion  being 
denied,  by  remaining  and  participating  in  the  proceedings 
he  converts  the  special  into  a  general  appearance.* 

<§  266. Moving    on    non jurisdictional 

GROUNDS.  A  special  appearance  to  move  a  dismissal  of  an 
action  setting  forth  jurisdictional  and  nonjurisdictional 
grounds,  converts  the  appearance  into  a  general  one;^ 
but  a  special  appearance  to  move  the  quashing  of  a  return 
to  the  service  of  a  process  (1)  because  publication  was 
not  made  within  the  time  required  by  the  statute,  and 
(2)  because  the  action  was  not  one  in  which  jurisdiction 
in  rem  could  be  acquired  by  service  by  publication,  is  not 
rendered  a  general  appearance  by  the  second  ground  of 
the  motion.^  But  a  special  appearance  to  attack  juris- 
diction of  the  court  because  of  a  want  of  service  of  the 
process,  is  converted  into  a  general  appearance  by  movini; 
to  dismiss  the  action  because  of  the  insufficiency  of  the 
affidavit  for  the  attachment;"  and  the  same  is  true  of  an 
appearance  to  file  a  motion  to  dismiss  the  action  on 
ground  (1)  of  want  of  jurisdiction  of  the  person  of  the 
defendant,  and  (2)  on  ground  of  want  of  jurisdiction  of 
the  subject-matter  of  the  action.*  An  appearance  de- 
nominated ''special,"  in  which  the  defendant  invokes  the 
aid  of  the  court  over  the  subject-matter  of  the  action,  as 

5  Id.  1  Gorham  v.  Tanquerry,  58  Kan. 

0  Clarke,  In  re,  125  Cal.  388,  58  233,  48  Pac.  916. 

Pac.  22;  Polk  v.  Martin,  82  Wash.  2  Deming  Invest.  Co.  v.  Ely,  21 

226,  144  Pac.  42.  Wash.  102,  57  Pac.  353. 

See,  also,  ante,  §  256,  footnote  10.  ..    ,    ,       „ 

^ -c^         4.*      Txr-i         OA  r-^i     A'7ti  3  Nichols     &     Shepard     Co.     v. 

7  Everett  v.  Wilson,  34  Colo.  476,      _  ^ 

g„  p        211  Baker,  13  Okla.  1,  73  Pac.  302. 

See,  also,  ante,  §  256,  footnote  25.  4  Olcese  v.  Justices'  Court,  156 

8  Sheldon  v.  Landwehr,  159  Cal.      Cal.  82,  103  Pac.  317. 
778,  116  Pac,  44. 

352 


I 


Ch.  XIIL]  APPEABANCE  BY   PARTY.  §§  267,  268 

well  as  on  purely  jurisdictional  grounds,  the  appearance 
will  be  deemed  to  be  a  general  appearance,  notwithstand- 
ing its  designation  as  special.^  A  special  appearance  for 
the  purpose  of  vacating  a  judgment  by  default  for  want 
of  jurisdiction  in  the  court  over  the  person  of  the  defend- 
ant, is  converted  into  a  general  appearance  by  further 
objecting  (1)  that  the  complaint  did  not  state  a  cause  of 
action,  and  (2)  that  the  process  did  not  conform  to  the 
relief  demanded  in  the  complaint.® 

§  267.  Appearance  by  party — In  general.  We  have 
already  seen  that  a  person  made  a  defendant  in  an  action 
may  appear  generally,  to  contest  the  cause  on  the  merits,^ 
or  that  he  may  specially,  to  object  to  the  proceeding  on 
jurisdictional  grounds.-  It  has  been  said  that  an  appear- 
ance in  response  to  a  void  service  of  process,  does  not 
constitute  a  voluntary  appearance  so  as  to  effect  a  waiver 
of  objection  to  the  service,  where  the  party  first  appears 
specially  to  question  the  court's  jurisdiction,  and,  on  the 
objection  being  overruled,  saves  an  exception  to  the  order 
overruling  the  objection,  and  then  appears  generally.^ 
This  doctrine  is  supported  by  the  decided  weight  of  au- 
thority and  the  better  reason,  but  it  does  not  go  unchal- 
lenged, as  we  have  already  seen."* 

§  268.    In  person  or  by  attorney.  We  have  already 

seen  that  a  person  made  a  defendant  in  an  action  at  law 
or  a  suit  in  equity  may  waive  process  and  enter  his  ap- 
pearance;^ and  also  that  a  guardian  may  waive  process, 
and  enter  an  appearance  for  his  ward,-  but  the  general 

5  State   ex   rel.   Hofman   v.    Su-  i  See,  ante,  §§  258-262. 
perior    Court,    88    Wash.    612,    153          2  See,  ante,  §§  263-266. 

Pac.  315.  3  State  ex  rel.   Lane  v.  District 

See,  also,  ante,  §  257,  footnotes      ^^^^^^  ^^  ^^^^  5^3^  L.  R.  A.  1916E, 

5-7-  1079,  154  Pac.  200. 

6  Security  Loan  &  Trust  Co.  v.  ,^^t„„*^  a 
„  ,  „  ^  „  „  ..  ^  10c  r-oi  4  See,  ante,  §  256,  footnote  9. 
Boston  &  S.  R.  Fruit  Co.,  126  Cal. 

418,  58  Pac.  941,  59  Pac.  296;  Car-  ^  See,  ante,  §§  250,  253. 

ter  V.  Tallant,  51  Kan.  516,  32  Pac.  2  See,  ante,  §  253. 

1108. 

I  Code  PI.  and  Pr.— 23  353 


§  268  CODE   PLEADING   AND  PRACTICE.  [Pt.  I, 

rule  is  that  persons  acting  in  a  fiduciary  capacity  have 
no  authority  to  waive  process  and  enter  appearance  in 
an  action.^  A  party  appearing  in  person  is  required  to 
give  a  written  notice  to  the  plaintiff  of  that  fact,^  and  if 
the  appearance  is  general,^  this  constitutes  a  waiver^'  of 
all  jurisdictional  objections,  and  confers  upon  the  court 
jurisdiction  over  the  person  of  such  defendant;  and  if 
the  defendant  is  a  corporation,  such  appearance  is,  for 
the  purposes  of  the  action,  conclusive  evidence  of  its  legal 
existence.'^  A  party  to  an  action  not  only  has  the  right 
to  appear  in  person,  but  in  person  may  also  conduct  the 
trial  of  the  cause ;  and  where,  in  the  trial  of  an  action  at 
law,  the  parties  appear  in  person,  and  undertake  its  man- 
agement, each  for  himself,  without  the  aid  of  counsel,  the 
law  presumes  them  to  have  full  knowledge  of  the  situation 
of  their  cause.^  While  a  party  to  an  action  may  appear 
(1)  in  his  own  person,  or  (2)  by  attorney,  he  can  not  do 
both;  and  if  he  appears  by  attorney,  he  can  not  assume 
the  control  of  the  cause.^  While  an  attorney  of  record 
remains  such,  his  right  to  manage  and  control  the  action 

3  See,  ante,  §  254.  121  Cal.  99,  100,  53  Pac.  433;  Wylie 

4  See  Kerr's  Cyc.  Cal.  Code  Civ,  v.  Sierra  Gold  Co.,  120  Cal.  485, 
Proc,  §  1014.  52  Pac.  809;  Crescent  Canal  Co.  v. 

Form  of  appearance. — See  Jury's  Montgomery,  124  Cal.  134,  146,  56 

Adjudicated     Forms    of     Pleading  Pac.  797;   Toy  v.  Haskell,  128  Cal. 

and  Practice,  vol.  2,  p.  1823.  558,   79   Am.   St.    Rep.   70,   61   Pac. 

r.  As  to  general  appearance,  see,  89;  Coonan  v.  Lowenthal,  129  Cal. 

ante,  §§  256,  258-262.  197,    200,    61    Pac.    940;     Boca    & 

6  As  to  waiver,  see.  Id.;  also,  Loyalton  R.  Co.  v.  Superior  Court, 
ante,  §§  250  et  seq.,  265,  266.  150  Cal.  153,  156,  157,  88  Pac.  718; 

7  Dauthier  Decorating   Co.    (A.)  Bonnifield  v.  Thorp,  71  Fed.  929. 
v.  Ham,  3  Colo.  App.  559,  34  Pac.  See  note  87  Am.  Dec.  168. 

484;    Missouri  River,  Ft.  S.  &  G.  Answer  signed  by  defendant  who 

R.    Co.    V.    Shirley,    20    Kan.    660;  has  appeared  by  an  attorney  who 

Seaton  v.  Chicago,  R.  I.  &   P.  R.  demurred    to    the    complaint,    and 

Co.,  55  Mo.  416.  who  has  not  been  displaced  in  any 

8  Waldez  v,  Archuleta,  3  N.  M.  manner,  is  irregular. — Crane  v. 
195,  5  Pac.  327.  Crane,  121  Cal.  99,  53  Pac.  433. 

9  Commissioners  of  Funded  Debt  Stipulation  consenting  to  judg- 
of  San  Jose  v.  Younger,  29  Cal.  ment,  filed  without  the  knowledge 
147,  149,  87  Am.  Dec.  164;  Mott  v.  or  consent  of  attorney  conducting 
Foster,  45  Cal.  72;  Crane  v.  Crane,  defense,  is   void. — Crescent  Canal 

354 


Ch.  XIII.]  APPEARANCE   IN    PERSON,    ETC.  §  268 

can  not  be  questioned  by  the  opposite  party.^*'  Courts 
will  not  presume  the  appearance  of  a  defendant  not  regu- 
larly served,  merely  because  a  continuance  was  ordered 
after  default  taken. ^^  Where  counsel  expressly  appears 
for  certain  defendants  in  an  action,  his  signature  to 
papers  in  the  case  after  that  time  as  attorney  for  the  de- 
fendants will  be  construed  as  limited  to  those  for  whom 
he  expressly  appeared.^^  Wliere  plaintiff  amended  his 
complaint  by  adding  two  new  parties  defendant,  and  these 
defendants  filed  an  acknowledgment  of  ''service  of  sum- 
mons and  a  copy  of  the  complaint,"  and  ''consent  that 
the  decree  herein  prayed  for  by  plaintiff  be  entered,"  it 
was  held  a  sufficient  appearance  to  authorize  a  decree 
against  them.^^  It  has  been  held  that  an  appearance  in 
the  probate  court  of  an  executor,  in  proceedings  relating 
to  an  estate,  is  a  waiver  of  citation  ;^^  but  the  soundness 
of  this  doctrine  is  questioned. ^^  An  appearance  is  a  pro- 
ceeding in  court,  and  must  constitute  a  part  of  the  rec- 
ord.^*' The  appearance  of  a  defendant  who  has  not  been 
served  with  notice,  to  testify  as  a  mtness,  does  not  con- 
stitute an  appearance  bringing  him  within  the  jurisdic- 
tion of  the  court  as  a  party.^''^ 

Co.  V.  Montgomery,  124  Cal.   134,  148;    Hobbs   v.   Duff,   43   Cal.   4S5, 

146,  56  Pac.  797.  492, 

Stipulation  for  continuance,  dis-  ^^  Foote    v.    Richmond,    42    Cal. 

missal,  and  the  like,  signed  by  the  439;  Childs  v.  Lanterman,  103  Cal. 

party   instead   of   his   attorney   in  387,  392,  42  Am.  St.   Rep.  121,  37 

the  action,  will  have  no  effect,  and  Pac.  382. 

v/ill  be  disregarded  by  the  court—  ^■^  Johnson,  Estate  of,  v.  Tyson, 

Wylie  V.  Sierra  Gold  Co.,  120  Cal.  45   Cal.   257;    Kearney,   Estate   of, 

485,  487,  52  Pac.  809;  Toy  v.  Has-  13  Cal.  App.  92,  95,  109  Pac.  38. 
kell,  128  Cal.  558,  560,  79  Am.  St.  ^^  See,  ante,  §254  and  footnote 

Rep.  70,  61  Pac.  89.  3,  this  section. 

Contra:    Paulson    v.    Lyson,    12  i«  McCormack     v.     First     Nat. 

N.  D.  359,  97  N.  W.  534.  ^^^^'  ^^  ^"^-  '^^^• 

17  Nixon  V.  Downey,  42  Iowa  78. 

10   Id.  A  X  U      * 

As  to   what   constitutes   appear- 
iiNorblett  V.   Farwell,   38   Cal.      gnce,   see   Kerr's    Cyc.   Cal.   Code 
15^-  Civ.  Proc,  §§406,  416,  1014;   ante, 

12  Spangel  v.  Dellinger,  42  Cal.      §  256,  footnotes  10-12. 

355 


§269  CODE   PLEADING   AND   PRxiCTICE.  [^t.  1, 

§  269.    To  CONTEST  MOTION.    A  party  who  appears 

and  contests  a  motion  in  the  court  below  can  not  object, 
on  appeal,  that  he  had  no  notice.^  And  if  counsel  appears 
to  a  motion,  the  presumption  is  that  he  appeared  to  op- 
pose, not  to  consent  to  the  order  sought.-  An  appearance 
to  defend  a  motion  is  a  waiver  of  notice.^  A  defendant 
has  a  right  to  appear  for  the  special  purpose  of  moving 
to  dismiss  a  defective  summons ;  and  if  the  court  denies 
the  motion,  a  general  appearance  and  answer  afterwards 
do  not  waive  the  right  or  cure  the  error,  if  any.*  This  is 
the  general  rule  supported  by  the  weight  of  authority, 
but  some  later  California  cases  hold  differently,^  the 
general  doctrine  being  that  such  a  motion  may  be  made 
without  entering  an  appearance  in  the  action;^  and  a 
notice  that  defendant  appears  for  the  sole  purpose  of 
such  a  motion  is  sufficient  to  entitle  him  to  be  heard 
thereon.'^  The  general  rule  is  that  if  such  motion  is  de- 
nied, defendant  may  answer  without  waiving  the  benefit 
of  an  exception  to  the  order  denying  his  motion,^  although 
some  later  California  cases  deny  this  doctrine.^  Where  a 
petition  is  filed,  and  defendant  moved  to  strike  from  the 
files  all  the  papers  in  the  action  on  the  ground  of  irregu- 
larities and  defects,  it  was  held  that  this  was  an  entry  of 
appearance. ^'^    So,  also,  a  motion  to  set  aside  a  judgment, 

1  Reynolds  v.  Harris,  14  Cal.  667,  6  Eldridge  v.  Kay,  45  Cal.  49, 

677,   76  Am.   Dec.  459;    Millard  v.  see,  ante,  §256,  footnote  8. 

Hathaway,    27    Cal.    119;    Shay   v.  7  Lander  v.  Fleming,  47  Cal   614 

Superior  Court,   57  Cal.   541,  542;  q^^ 
Accock  V.  Halsey,  90  Cal.  215,  220, 
27  Pac.  193;    Curtis  v.  Walling,  2 
Idaho  386    (2  Hasbrouck  416),  18 
Pac.  54. 

■2  Borkheim  v.   North   British  &  ^^^'  ^«t«'  §  ^56,  footnote  8. 

Mercantile   Ins.    Co.,    38    Cal.    623,  ^  See,  ante,  §  256,  footnote  9. 

627.  lOMaholm  v.  Marshall,  29  Ohio 

3  Brown  v.  Milton,  55  Tenn.    (8  St.  611. 

Heisk.)  871.  As  to  motion  in  cause,  see,  ante, 

4  Lyman  v.  Milton,  44  Cal.  630.      §  260. 

See,  also,  ante,  §  256,  footnote  8.  As  to  what  constitutes  appear- 

5  See,  ante,  §  256,  footnote  9.  ance  generally,  see,  ante,  §  256. 

356 


As   to    special    appearance,    see, 
ante,  §§  263-266. 

8  Kent  V.  West,  50  Cal.  185. 


ell.  XIII.]  APPE.VRANCE    BY    ATTORNEY.  §§270.271 

partly  on  the  ground  of  want  of  jurisdiction  of  the  de- 
fendant and  partly  on  the  ground  of  mere  irregularities 
consistent  with  the  fact  of  jurisdiction,  was  held  a  general 
appearance,  and  waiver  of  any  defect  in  service  of 
process. ^^ 

§  270.  Rights  of  party  appearing.  After  appear- 
ance, a  defendant,  or  his  attorney,  is  entitled  to  notice  of 
all  subsequent  proceedings  of  which  notice  is  required  to 
be  given.  But  where  a  defendant  has  not  appeared,  serv- 
ice of  notice  or  papers  need  not  be  made  upon  him  unless 
hcvis  imprisoned  for  want  of  bail.^  It  has  been  held  that  a 
stipulation,  signed  by  plaintiffs  and  some  of  the  defend- 
ants to  an  action,  for  a  settlement  and  dismissal  of  the 
action,  is  not  such  an  appearance  as  entitles  the  defend- 
ants to  notice  of  further  proceedings  in  the  action.^ 

§  271.  Appeajrance  by  attorney — In  general.  Under 
the  California  practice, — and  the  same  is  true  in  most  if 
not  all  the  jurisdictions, — at  any  time  after  the  commence- 
ment of  an  action,  any  one  or  all  of  the  defendants  may 
appear  by  attorney  without  the  service  of  process/  and 
the  defendants  thus  appearing  must  plead  to  the  action 
within  the  same  time  as  they  would  have  been  required  to 
plead  had  the  process  been  served  upon  them.  An  ap- 
pearance entered  by  an  attorney,  whether  authorized  or 
not,  is  a  good  and  sufficient  appearance  to  bind  the  party 
for  whom  he  appears,-  except  in  cases  of  fraud  or  collu- 

11  Blackburn  v.   Sweet,  38  Wis.  Sampson  v.  Ohleyer,  22  Cal.   200, 

578.  210;   People  v.  Western  Meat  Co., 

See,  also,  ante,  §§  262,  265,  266.  13  Cal.  App.  539,  545,  110  Pac.  338; 

1  Kerr's  Cyc.  Cal.  Code  Civ.  Nez  Perce  County  v.  Latah  County, 
Proc,  §  1014.  2  Idaho  (West  Pub.  Co.  Ed.)  1131, 

2  Grant  V.  Schmidt,  22  Minn.  1.  1135,  31  Pac.  800;  State  v.  Passaic 

1  As  to  waiver  of  process  or  the  County  Society,  54  N.  J.  L.  260,  23 
service  thereof,  see,  ante,  §§250  Atl.  680;  Whipple  v.  Whitman.  13 
et  seq.  H.    I-    514,   43    Am.    Rep.    45.      See 

2  Suydam  v.  Pitcher,  4  Cal.  280;  Pacific  Pav.  Co.  v.  Vizelich,  141 
Holmes    v.    Rogers,    13    Cal.    191;  Cal.  4,  8,  74  Pac.  352. 

Turner  v.  Caruthers,  17  Cal.  431;  As   to    powers   of   attorney,   see 

357 


§271 


CODE  PLEADING  AND  PRACTICE. 


[Ft.  I, 


sion,  or  where  the  attorney  is  insolvent,^  or  the  attorney 
disobeys  the  instructions  of  his  client, — e.  g.  enters  into 
a  compromise  in  defiance  of  the  protests  of  his  client/ 
because  an  attorney  has  no  implied  authority  to  compro- 
mise or  settle  his  client's  cause  without  the  latter 's  con- 
sent.^ And  an  appearance  by  an  attorney,  whether 
authorized  or  not,  at  common  law,  and  by  express  provi- 
sion of  our  statute,  is  a  waiver  of  the  service  of  process,*"' 
and  a  waiver  of  all  defects  in  the  summons  or  previous 
proceedings  f  and  of  all  irregularity  in  the  original  proc- 


Kerr's  Cyc.  Cal.  Code  Civ.  Proc, 
§§  283,  1014;  also,  note  75  Am.  Dec. 
148. 

Authority  of  attorney  implied, 
but  want  thereof  may  be  ques- 
tioned upon  aflBdavit  upon  direct 
application  therefor. — See  Turner 
V.  Caruthers,  17  Cal.  431;  Clark  v. 
Willett,  35  Cal.  540;  Magnolia  & 
H.  Fruit  Cannery  v.  Guerne,  3  Cal. 
Unrep.  589,  31  Pac.  363;  Williams 
V.  Uncompahgre  Canal  Co.,  13 
Colo.  469,  475,  22  Pac.  806. 

As  to  method  of  attacking  au- 
thority of  attorney  to  appear  for 
party  he  assumes  to  represent. — 
Williams  v.  Uncompahgre  Canal 
Co.,  13  Colo.  469,  492,  22  Pac.  806. 

See,  also,  note  126  Am.  St.  Rep. 
39. 

— Or  on  motion  to  vacate  judg- 
ment, order  or  decree,  where  the 
validity  thereof  depends  upon  the 
attorney's  authority  to  appear. — 
Bonnefield  v.  Thorp,  71  Fed.  928. 

Attorney's  lack  of  authority 
ground  for  vacating  judgment. — 
See,  post,  §  272,  footnote  4. 

Doctrine  not  sanctioned  by  later 
California  cases. — See  footnote  14, 
this  section,  and  text  going  there- 
with. 

Remedy  against  the  attorney.— 
Sampson  v.  Ohleyer,  22  Cal.  210. 


Unauthorized  appearance  of  at- 
torney, effect  upon  judgment. — See 
note  75  Am.  Dec.  148,  21  L.  R.  A. 
848. 

Judgment  when  rendered  is  un- 
authorized. —  Merced  County  v. 
Hicks,  67  Cal.  108,  109,  7  Pac.  179, 

3  Suydam  V.  Pitcher,  4  Cal.  280; 
Holmes  v.  Rogers,  13  Cal.  191,  200; 
Gregory  v.  Ford,  14  Cal.  143,  73 
Am.  Dec.  639;  Sampson  v.  Ohleyer, 
22  Cal.  200,  210. 

Having  attorney  appear  and  rep- 
resent, without  their  knowledge, 
parties  fraudulently  joined  in  a 
complaint,  held  not  to  give  such 
parties  the  right  to  set  aside  a 
sale  of  their  lands  under  an  execu- 
tion for  costs  of  the  proceedings, 
though  made  without  notice  to 
them,  for  a  nominal  price,  where 
the  purchaser  had  no  notice  of  the 
fraud. — Williams  v.  Johnson,  112 
N.  C.  424,  34  Am.  St.  Rep.  513,  21 
L.  R.  A.  848,  17  S.  E.  496. 

Attorney  unauthorized  to  ap- 
pear, effect  on  judgment.  —  See 
note  21  L.  R.  A.  848. 

4  Preston  v.  Hill,  50  Cal.  53,  19 
Am.  Dec.  652. 

5  Whipple  V.  Rogers,  13  R.  I. 
514,  43  Am.  Dec.  45. 

6  Suydam  v.  Pitcher,  4  Cal.  280. 

7  Hyde  v.  Patterson,  1  Abb.  Pr. 


358 


■h.  XIII.] 


APPEARANCE   BY   ATTORNEY. 


§271 


ess  or  the  service  thereof,^  except  jurisdictional  defects 
and  irregularities^  totally  invalidating  the  proceedings.^*' 
A  voluntary  appearance  by  attorney,  and  participation  in 
the  argument  of  a  motion,  waives  notice  of  such  a  mo- 
tion.^^  If  an  attorney  appears  for  a  defendant  in  a  court 
of  general  jurisdiction,  this  appearance  gives  the  court 
jurisdiction  of  the  person  of  defendant;  and  if  the  attor- 
ney appeared  without  authority,  that  fact  can  not  be 
shown  as  a  defense  at  law,  in  a  suit  upon  the  judgment.^ - 
If  an  attorney  appears  for  a  part  only  of  defendants,  and 
inadvertently  answers  for  all,  and  obtains  leave  of  court 
to  withdraw  his  answer,  and  substitute  a  new  one  answer- 
ing for  the  party  only  for  whom  he  appears,  the  court 
acquires  jurisdiction  only  of  those  for  whom  he  appears. ^^ 
Where  several  defendants  are  named,  but  none  of  them 
have  been  served,  an  appearance  by  an  attorney  at  the 
request  of  one  of  them,  although  purporting  to  be  for  all 


(N.  Y.)  248;  Bierce  v.  Smith,  2 
Abb.  Pr.  (N.  Y.)  411;  Webb  v. 
Mott,  6  How.  Pr.  (N.  Y.)  439,  440; 
Dole  V.  Manley,  11  How.Pr.  (N.  Y.) 
138. 

8  See  Pearce  v.  Thackeray,  13 
Fla.  577;  Barro  v.  Gordon,  21  Fla. 
36;  Easton  v.  Altum,  2  111.  (1 
Scam.)  251;  Dyson  v.  Brandt,  9 
Mart.  O.  S.  (La.)  497;  Maine  Bank 
V.  Hervey,  21  Me.  45;  Smith  v. 
Robinson,  54  Mass.  (13  Mete.)  167; 
Gray  v.  Young,  1  Harp.  L.  (S.  C.) 
40,  Knox  V.  Summers,  7  U.  S.  (3 
Or.)  496,  2  L.  Ed.  510;  Gracie  v. 
Palmer,  21  U.  S.  (8  Wheat.)  699, 
5  L.  Ed.  719;  Atkins  v.  The  Dis- 
integrating Co.,  85  U,  S.  (18  Wall.) 
298,  21  L.  Ed.  843;  McCoy  v.  Le- 
mons, 1  Hempst.  216,  Fed.  Cas. 
No.  S730a;  Flanders  v.  Aetna  Ins. 
Co.,  3  Mass.  158,  160,  Fed.  Cas. 
Xo.   4852;    Clarke   v.   New    Jersey 


Steam  Nav.  Co.,  1  Story  531,  540, 
Fed.  Cas.  No.  2859;  Wilson  v. 
Pierce,  15  Law.  Rep.  137,  Fed. 
Cas.  No.  17826;  Piatt  v.  Manning, 
34  Fed.  818;  Barnes  v.  Western 
Union  Tel.  Co.,  120  Fed.  554. 

To  avoid  waiver,  appearance 
must  be  special.  —  Romaine  v. 
Union  Ins.  Co.,  28  Fed.  638. 

As  to  special  appearance,  see, 
ante,  §§  2G3-26G. 

9  As  to  Jurisdictional  defects  and 
irregularities,  see,  ante,  §  38. 

10  Beall  V.  Blake,  13  Ga.  221,  58 
Am.  Dec.  515. 

11  Curtis  V.  Walling,  2  Idaho 
(West  Pub.  Co.  Ed.)  383,  18  Pac. 
54. 

12  Carpentier  v.  Oakland,  City 
of,  30  Cal.  439.  See  Hodgdon  v. 
Southern  Pac.  R.  Co.,  75  Cal.  642, 
648.  17  Pac.  928. 

13  Forbes  v.  Hyde,  31  Cal.  342. 


359 


§  272  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

of  the  defendants,  is  not  binding  upon  those  who  did  not 
authorize  the  appearance.^^ 

§  272.  Authority  of  attorney  to  appear.  Attor- 
neys are  officers  of  the  court,  and  answerable  to  it  for  the 
proper  performance  of  their  professional  duties.^  They 
appear  and  participate  in  the  proceedings  only  by  the 
license  of  the  court.^  And  his  license  is  prima  facie  e\d- 
dence  of  authority  to  appear  for  the  person  whom  he 
professes  to  represent,^  but  if  the  supposed  client  denies 
the  authority,  the  court  may  require  him  to  produce  the 
evidence  of  his  retainer,  either  upon  the  direct  applica- 
tion of  the  person  represented,  or  upon  motion  of  the 
attorney  of  the  opposite  party  to  dismiss,  founded  upon 
the  affida\dt  of  the  person  or  party  concerning  whom  the 
motion  is  made.^  It  has  been  said  to  be  a  contempt  of 
court  for  an  attorney  to  appear  in  a  cause  ^\dthout  au- 
thorization thereto,^  and  also  that  it  is  ground  for  setting 
aside  and  vacating  every  judgment  or  order  or  decree 
made  or  entered  in  the  case.*'  The  practice  of  permitting 
appearance  mthout  producing  a  warrant  of  attorney  is 
as  applicable  to  appearance  for  a  corporation  as  for  a 
natural  person.'^  An  attorney  of  the  court  who  institutes 
suit  in  the  name  of  plaintiff  is  presumed  prima  facie  to 
have  authority,  and  the  adverse  party  or  his  attorney 

14  Merced   County   v.   Hicks,   67  Attorney's   lack   of  authority  to 

Cal.  108,  7  Pac.  179;   Hill  v.  City  appear,     judgment     properly     va- 

Cab  &  Transfer  Co.,  79  Cal.  188,  cated.— Blyth  &  Fargo  Co.  v.  Swen- 

191,  21  Pac.  728;   People  v.  West-  son,  15  Utah  345,  49  Pac.  1027. 

ern  Meat  Co.,  13  Cal.  App.  539,  545,  5  See    State    v.    Passaic   County 

110  Pac.  338.  Society,  54  N.  J.  L.  260,  23  Atl.  680. 

1  Clark  V.  Willett,  35  Cal.  534,  ^  Blyth  &  Fargo  Co.  v.  Swenson, 
539  15   Utah   345,    49    Pac.    1027.     See 

^,n  Marvel  v.  Manouvrier,  14  La.  Ann. 

2  Id.,  p.  540. 

3,  74  Am,  Dec.  424;   McEachern  v. 

3  Id.;  People  v.  Mariposa  County,  ^rackett,  8  Wash.  652,  656,  40  Am. 
39  Cal.  684.  g^    Rep,  925,  36  Pac.  690. 

4  Clark  V,  Willett,  35  Cal.  534,  7  Osborn  v.  Bank  of  United 
540.                                                               States,  22  U.  S.  (9  Wheat.)  738,  6 

See,  also,  ante,  §  271,  footnote  2.      L.  Ed.  204. 

360 


ch.  XIII.]  ATTORNEY — AUTHORITY    TO    APPEAR.  §  272 

can  not,  upon  mere  suggestion  at  the  bar,  deny  the  right 
of  a  party  to  appear  by  the  attorney  of  record,  nor  deny 
that  the  attorney  so  appearing  has  full  authority  to  prose- 
cute the  suit.^  The  authority  of  an  attorney-at-law  to 
appear  for  parties  for  whom  he  enters  an  appearance  in 
an  action  will  be  presumed  where  nothing  to  the  contrary 
appears;^  the  record  need  not  show  his  authority,^^  but 
the  court  has  inherent  power  to  determine  by  what  au- 
thority an  attorney  appears  either  to  prosecute  or  defend 
for  another,  whether  that  other  be  a  natural  or  an  artifi- 
cial person.^ ^  However,  a  party  can  not  question  the 
authority  of  an  attorney  where  the  right  of  the  attorney 
to  appear  is  once  conceded,  and  the  attorney  has  been 
heard  in  behalf  of  his  client,  pursuant  to  his  authority. ^- 
It  seems  that  the  appearance  of  an  attorney  wholly  un- 
authorized, there  being  no  fraud  and  no  allegation  of 
insolvency,  would  not  give  the  party  a  right  to  assail  the 
judgment  on  that  ground. ^^  Where  a  defendant  has  been 
served  with  summons  and  default  has  been  entered 
against  him,  it  is  immaterial  whether  or  not  an  attorney, 
who  had  appeared  for  him,  was  authorized  so  t6  do,  and 
a  judgment  thereafter  rendered  against  such  defendant 
by  default  will  not  be  set  aside  upon  the  ground  that  an 

8  Turner   v.    Caiuthers,    17    Cal.  loOsborn    v.    Bank    of    United 
431.                                                               States,  22  U.  S.  (9  Wheat.)  738,  6 

9  Holmes  v.  Rogers,  13  Cal.  191;       L.  Ed.  204. 

Hayes    v.    Shattuck,    21    Cal.    51;  ii  \V  i  1 1  i  a  m  s  v.  Ilncompahgre 

Sampson  v.  Ohieyer.  22  Cal.  210;  Canal  Co.,  13  Colo.  469,  22  Pac.  806. 

Willson  V.  Cleveland,  30  Cal.  192,  Formal  notice  of  appearance  in 

89   Am.   Dec.  85;    Garrison  v.   Mc-  a  judicial  proceeding  jjiescribed  in 

Gowan,    48    Cal.    592;     Hunter    v.  §520  of  the   Oregon   Code   is   un- 

Bryant,   98    Cal.   252,   33    Pac.    55;  necessary,  unless  the  right  of  the 

Pacific   Pav.    Co.   v.   Vizelich,   141  attorney  to   appear   is  challenged 

Cal.  4,  8,  74  Pac.  352;    Osborn  v.  by   the   adverse   party. — Carter   v. 

Bank  of  United   States,   22   U.    S.  Koshland,  12  Ore.  492,  8  Pac.  556. 

(9    Wheat.)     738,    6    L.    Ed.    204;  12  Roethler  v.  Cummings.  84  Ore. 

Bonnifield  v.  Thorp,  71  Fed.  927.  442,  165  Pac.  355. 

See,  also,  numerous  cases  cited,  i3  Holmes  v.  Rogers,  13  Cal.  191; 

2  Rose's  Notes  on  U.  S.  Reps.,  2d  Hayes    v.    Shattuck,    21    Cal.    51; 

ed.,  pp.  176,  177.  Willson  v.  Cleveland,  30  Cal.  192. 

361 


§  273  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

attorney  had  appeared  for  him  without  authority.^'*  And 
if  an  attorney  has  been  admitted  to  practice  in  another 
state,  and  has  been  accustomed  to  practice  here,  and  has 
been  recognized  by  the  courts  and  bar  here  as  a  member 
of  the  bar,  he  is  de  facto  an  officer  of  the  courts  of  this 
state;  and  an  entry  of  appearance  by  such  attorney  is 
of  the  same  effect  as  though  he  had  been  admitted  to 
practice  in  this  state.^^  It  has  been  said  that  an  attorney 
may  voluntarily  appear  on  behalf  of  a  party  not  appear- 
ing, and  suggest  to  the  court  a  dismissal  as  to  such 
party.^^ 

§  273.   Signature  of  attoeney  —  No   notice  of  : 

Proof  of.  It  is  a  well-settled  rule  of  law  that  courts  will 
take  judicial  cognizance  of  its  officers  as  such  and  of  their 
sigTiatures,^  even  though  the  official  character  is  not  at- 
tached to  the  signature,- — e.  g.  signatures  of  clerks  of  the 
court,^  sheriffs,^  and  the  like ;  but  while  an  attorney  is  in 
a  sense  *'an  officer  of  the  court,"  there  is  no  rule  which 

14  Hunter  v.  Bryant,  98  Cal.  252,  2  State  v.  Cole,  28  Tenn.  (9 
33  Pac.  55.  Humph.)   626. 

15  Garrison  v.  McGowan,  48  Cal.  3  Fenton  v.  American  Jewelry 
592.  Co.,  51  Neb.  395,  396,  70  N.  W.  931. 

16  Mason  v.  Intercolonial  R.  of  See  Bishop  v.  State,  30  Ala.  34: 
Canada,  197  Mass.  349,  350,  125  Yell  v.  Lane,  41  Ark.  53;  Mackin- 
Am.  St.  Rep.  371,  14  Ann.  Cas.  574,  son  v.  Barnes,  66  Barb.  (N.  Y.)  91; 
16  L.  R.  A.  (N.  S.)  276,  83  N.  E.876.  Burton  v.  Pettybone,  13  Tenn.   (5 

1  Alderson  v.   Bell,   9    Cal.   315;  Yerg.)    443;    Stinson  v.  Russell,  2 

Thompson  v.  Haskell,  21  111.  215,  Tenn.    (2    Overt.)     40;     Major    v. 

74    Am.     Dec.    98;     Hemmann    v.  State,  34  Tenn.  (2  Sneed)  11;  State 

Mink,  99  Ind.  279;  State  v.  Postle-  v.  Cole,  28  Tenn.  (9  Humph.)  626. 

wait,  14  Iowa  446;  State  v.  Bowen,  Matters   not  strictly  judicial,  it 

16  Kan.  475;   Nowell  v.  McHenry,  is  doubtful  whether  judicial  notice 

1  Mich.  227;   Fenton  v.  American  will  be  taken  of  the  clerk's  signa- 

Jewelry  Co.,  51  Neb.  395,  70  N.  W.  ture.    Thus,  it  has  been  questioned 

931;     Mackinson     v.     Barnes,     66  whether    the    court   will    take    ju- 

Barb.  (N.  Y.)  91;  State  v.  Cole,  28  dicial  notice  of  the  clerk's  signa- 

Tenn.   (9  Humph.)    626;    Major  v.  ture    to    a    county    bond. — See    2 

State,  34  Tenn.  (2  Sneed)  11.  Cent.  L.  J.  447. 

As  to  Judicial  notice,  see  notes  4  Ingraham  v.  State,  27  Ala.  17; 

89  Am.  Dec.  663,  13  Am.  St.  Rep.  Thompson  v.  Haskell,  21  111.  215, 

738,  4  L.  R.  A.  33.  74  Am.  Dec.  98;  Thielman  v.  Brag, 

362 


J 


eh.  XIII.]  STIPULATIONS    BIXDIXG    OX    CLIENT.  §  271 

extends  such  notice  to  the  signatures  of  attorneys  or  of 
the  parties  to  an  action,^  although  the  court  will  take  ju<U- 
cial  notice  of  what  attorney  appeared  in  a  cause.*'  If  an 
answer  has  the  sigiiature  of  the  attorney  of  record  and 
that  of  an  associate  attorney  attached  to  it,  the  court  will 
not  strike  it  out;  but  the  court  will  not  try  the  question 
whether  the  signature  of  the  attorney  of  record  is  genu- 
ine, or  was  put  there  by  himself  or  by  his  associate  with- 
out his  authority."^ 

§  274.  Stipulations  of  binding  on  client.  An  at- 
torney appearing  for  a  party  has  the  right  to  the  full 
conduct  of  the  cause,^  and  may  bind  his  client  by  his  stipu- 
lations entered  into  at  any  step  in  the  cause,-  but  the 
stipulation  must  be  in  writing  and  filed  with  the  clerk, 
or  entered  on  the  minutes  in  the  record,  to  be  valid.^ 
Thus,  if  plaintiff's  attorney  stipulates  that  a  party  may 
file  an  answer  nunc  pro  tunc  as  of  a  certain  date,  he  is 
estopped  from  saying  that  such  defendant  was  not  a  party 
to  the  action  on  that  date,^  and  a  stipulation  that  an 
appeal  may  be  heard  on  its  merits  bars  a  motion  to  dis- 
miss the  appeal.^  But  an  attorney  for  one  of  the  parties, 
in  a  proceeding  in  a  lower  court  to  determine  conflicting 

73  111.  293;  Alexander  v.  Bumham,  Pac.  734;  Eisenberg  v.  Nichols,  57 

18  Wis.  199.  Wash.  560,  562,  107  Pac.  371. 

5  Alderson  v.  Bell,  9  Cal.  315.  Oral  stipulation  acted  upon  and 

6  Symmes  v.  Major,  21  Ind.  443.  is  not  merely  executory,  the  rule 

7  Willson  V.  Cleveland,  30  Cal.  is  said  to  be  otherwise. — See  Him- 
192,  200,  89  Am.  Dec.  85.  milmann  v.  Sullivan,  40  Cal.  125; 

1  See,  ante,  §  268,  footnotes  9  et  Smith  v.  Whittier,  95  Cal.  279,  288, 
seq.  30  Pac.  529. 

2  See  Kerr's  Cyc.  Cal.  Code  Civ.  Order  refusing  to  set  aside  a 
Proc,  §  283.  stipulation  is  not  appealable,  and 

3  Id.;  Borkheim  v.  North  British  is  reviewable  on  appeal  only  from 
&  Mercantile  Ins.  Co.,  38  Cal.  623,  the  final  judgment  by  the  moving 
628;  Merritt  v.  Wilcox,  52  Cal.  238,  party.— Pacific  Pav.  Co.  v.  Vize- 
241;    McLaughlin   v.   Clausen,   116  lich,  141  Cal.  4,  74  Pac.  352. 

Cal.  487,  491,  48  Pac.  487;  Haley  v.  4  Lawrence  v.  Ballou,  50  Cal.  258. 

Eureka  County  Bank,  20  Nev.  410,  b  Nez    Perce    County    v.    Latah 

421,  22  Pac.  1098;  McWhirter  v.  Coimty,  2  Idaho  (West  Pub.  Co. 
Donaldson,  36  Utah  293,  302,  104      Ed.)  1131,  1135,  31  Pac.  800. 

363 


§§  275, 276  CODE  pleading  and  practice.  [Pt.  I, 

claims  to  town  lots,  can  not,  after  the  board  of  trustees  of 
the  tovm.  have  awarded  the  lots  to  his  client,  pass  the 
client's  right  or  title  by  a  stipulation  in  the  cause  for  the 
entry  of  a  void  judgment.*^ 

§  275.  Appearance  by  agent,  attorney-in-fact,  etc.  A 
party  to  an  action  must  appear  in  person^  or  by  an  attor- 
ney-at-law,2  because  no  one  except  the  party  in  person 
or  a  duly  licensed  attorney  can  represent  a  defendant  in 
a  court  of  record.  We  have  already  seen  that  the  party 
to  be  affected  thereby,  or  some  one  duly  authorized  by  him 
in  the  premises,  can  waive  the  issuance  and  service  of 
process.^  An  attorney-in-fact  or  other  agent  can  not 
appear  for  a  defendant  and  waive  process  and  service 
mthout  special  authority.* 

§  276.  Board  of  education,  etc.  :  Suits  by  and  against 
- — Power  to  employ  counsel.  In  California,  school  dis- 
tricts are  quasi-corporations  of  the  most  limited  powers 
known  to  the  laws.  The  boards  of  education  and  school 
trustees  have  special  powers,  and  can  not  exceed  the 
limit ;  the  latter  are  special  agents  Avithout  general  power 
to  represent  the  district,  not  being  vested  with  the  general 
and  discretionary  powers  conferred  upon  the  boards  of 
super\'isors^  of  the  counties.-  Hence  it  has  been  held 
that  in  California  a  board  of  education  or  a  board  of 
school  directors  or  trustees  may  not  employ  counsel  either 
to  prosecute  or  defend  actions  by  or  against  them,^  the 
contention  being  that  such  board  is  entitled  to  call  upon 
the  city  attorney,  where  the  district  is  located  in  a  city 

6  Ryan  v.  Tomlinson,  31  Cal.  11.  2  Skelly  v.  Westminster   School 

a  See,  ante,  §§  267  et  seq.  District.  103  Cal.  652,  37  Pac.  643. 

„c  .      ss  0-71  ^+  c«^  3  Denman  v.   Webster,   139   Cal. 

2  See,  ante,  §§  271  et  seq. 

452.    73    Pac.    139.      See    Byrne   v. 

3  See,  ante,  §§  250-254.    .  Covington,  City  of.  Board  of  Edu- 

4  Lamb  v.  Gaston  &  Simpson  cation,  140  Ky.  531,  131  S.  W.  260; 
Gold  &  Silver  Min.  Co.,  1  Mont.  64.      jackson   v.    Minneapolis,    City   of, 

See,  also,  ante,  §  254,  footnote  2.      Board  of  Education,  112  Minn.  167, 
1  See,  post,  §  278.  127  N.  W.  569. 

364 


eh.  XIII.]  SUITS   AGAINST    CITIES.  §  2  M 

whose  charter  provides  for  a  city  attorney,*  and  upon  the 
county  attorney,  where  the  district  is  located  outside  of 
an  incorporated  municipality.^  This  decision  was  hy  a 
divided  court,  bein^-  four  judges  for  and  three,  including 
the  Chief  Justice,  against  the  doctrine  laid  down,*^  and  is 
against  the  general  doctrine  on  the  subject,  which  is  to 
the  effect  that  school  boards  and  school  districts  have 
power  to  employ  counsel  where  such  employment  is  neces- 
sary for  the  protection  of  public  interests  committed  to 
their  charge,' — and  this  will  doubtless  cover  the  employ- 
ment of  counsel  to  assist  the  city  attorney  or  county  attor- 
ney where  the  interest  and  circumstances  warrant  it, — 
and  contravenes  the  general  doctrine  laid  do\vn  in  an 
earlier  case,  but  which  case  is  not  cited  or  referred  to  in 
any  way  in  the  opinion.^ 

<§>  277.  Cities  :  Suits  by  and  against — Power  to  employ 
COUNSEL.  The  general  rule  is  that  cities  may  employ  coun- 
sel other  than  the  official  city  attorney,^  when  such  em- 

4Denman  v.  Webster,   139    Cal.  Ga.  App.  852,  75  S.  E.  166;  Kings- 

452,  73  Pac.  139.  bury  v.  Centre  School  District,  53 

See     2     Dillon     on     Municipal  Mass.    (12   Mete.)    90;    Burgess   v. 

Corps.,  5th  ed.,  §  824.  School    District,    100    Mass.    132; 

5  See  Mollohan  v.  Cavender,  75  Page  v.  Township  Board  of  Educa- 

W.  Va.  36,  Ann.  Cas.  1918A,  499,  tion,  59  Mo.  264;  Johnson  v.  Troy, 

L.  R.  A.  1917D,  248,  83  S.  E.  78.  19    Hun    (N.    Y.^    204;    Gould    v. 

•;  Contention  of  dissent  is  that  a  Board    of    Education,    34    Hun 

board  of  school  directors  derives  (N.  Y.)   16;    Com.  v.  Kerr,  25  Pa. 

its  ijowers  and  functions  from  the  Co.    Ct.    Rep.    645;    Harrington    v. 

Political    Code    of    California    and  School  District  Xo.  Si.x,  30  Vt.  155; 

the  general  laws  of  the  state,  and  Mollohan  v.  Cavender,  75  W.  Va. 

that  these   powers   and    functions  36,  Ann.  Cas.  1918A,  499,  L.  R.  A. 

can  not  be  destroyed  or  curtailed  1917D,  248,  83  S.  E.  78;  McCaffrey 

by    municipal    authority    of    city  v.  School  District  No.  One,  74  Wis. 

charter  provisions. — See  Kennedy  100,  42  N.  W.  103. 

V.  Miller,  97  Cal.  429,  32  Pac.  558;  See,  also,  notes  Ann.  Cas.  1918A, 

Bruch   V.   Colombet,   104    Cal.   347,  502;   L.  R.  A.  1917D,  251. 

350,  38   Pac.   45;    Mitchell   v.   San  s  Smith  v.  Sacramento,  City  of, 

Francisco  Board  of  Education,  137  13  Cal.  531. 

Cal.  372,  70  Pac.  180.  i  Smith  v.  Sacramento,  City  of, 

7  state  V.  Aven,  70  Ark.  291,  67  13  Cal.  531;   Buck  v.  Eureka,  City 

S.  W.  752;  Taylor  v.  Matthews,  10  of,  124  Cal.  61,  56  Pac.  612;  Huron, 

365 


§277 


CODE  PLEADING   AND   PRACTICE. 


[Ft.  T, 


ployment  does  not  infringe  upon  the  rights  of  any  other 
official,^  even  though  the  city  charter  especially  provides 
for  a  city  attorney  whose  function  shall  be  to  attend  to 
all  the  legal  business  of  the  city,  where  the  city  authorities 
consider  such  an  employment  necessary  to  the  public  wel- 
fare,^— e.  g.  to  represent  the  city  in  a  cause  before  the 
United  States  supreme  court,^  or,  without  especial  au- 
thority, to  employ  a  special  attorney  to  represent  the 
city's  interests  in  a  foreign  state  f  or  may  employ  counsel 
to  assist  the  city  attorney;^  but  the  city  authorities  can 
not  delegate  to  an  attorney  thus  employed  the  discretion- 
ary right  to  employ  assistant  counsel  and  empower  him 
to  fix  the  compensation  of  such  assistants 

Mayor  of  city,  as  a  general  rule,  has  no  authority,  by 
virtue  of  his  office,  to  authorize  litigation  or  employ  an 
attorney  on  behalf  of  the  city,  or  to  employ  special  coun- 
sel to  represent  himself  or  the  city,  so  as  to  make  the  city 


City  of,  V.  Campbell,  3  S.  D.  321, 
53  N.  W.  182. 

2  State  ex  rel.  Bermudez  v. 
Heath,  20  La.  Ann.  172,  96  Am. 
Dec.  390. 

3  Smith  V.  Sacramento,  City  of, 
13  Cal.  531;  Mt.  Vernon  v.  Patton, 
94  111.  G5;  State  ex  rel.  Bermudez 
V.  Heath,  20  La.  Ann.  172,  96  Am. 
Dec.  390;  Niles,  Mayor,  etc.,  of,  v. 
Muzzy,  33  Mich.  61,  20  Am.  Rep. 
€70;  Memphis,  City  of,  v.  Adams, 
56  Tenn.  (9  Heisk.)  518,  24  Am. 
Rep.  331. 

Mayor  of  city  an  attorney,  with- 
out fraud  or  collusion,  was  em- 
ployed by  the  common  council  to 
appear  in  a  suit  for  the  city,  his 
employment  was  held  valid,  and 
that  he  was  entitled  to  the  value 
of  his  services.  —  Niles,  Mayor, 
etc.,  of,  V.  Muzzy,  33  Mich.  61,  20 
Am.  Rep.  670. 


4  Smith  V.  Sacramento,  City  of, 
13  Cal.  531. 

5  Memphis,  City  of,  v.  Adams, 
56  Tenn.  (9  Heisk.)  518,  24  Am. 
Rep.  331. 

6  Denver,  City  of,  v.  Webber,  15 
Colo.  App.  511,  63  Pac.  804;  Rice 
V.  Gwinn,  5  Idaho  394,  49  Pac.  412; 
Boise  City,  City  of,  v.  Randall,  8 
Idaho  119,  66  Pac.  938;  Cullen  v. 
Carthage,  Town  of,  103  Ind.  196, 
53  Am.  Rep.  504,  2  N.  E.  571;  Moor- 
head,  City  of,  V.  Murphy,  94  Minn. 
123,  110  Am.  St.  Rep.  345,  3  Ann. 
Cas.  434,  68  L.  R.  A.  400,  102  N.  W. 
219;  Vicksburg  Waterworks  Co.  v. 
Vicksburg,  City  of,  99  Miss.  132, 
Ann.  Cas.  1913D,  917,  33  L.  R.  A. 
(N.  S.)  844,  54  So.  852;  Barnet  v. 
Paterson,  City  of,  48  N.  J.  L.  25, 
6  Atl.  723;  Treeman  v.  Perry,  City 
of,  11  Okla.  66,  65  Pac.  923. 

T  Knight  V.  Eureka,  City  of,  123 
Cal.  192,  55  Pac.  768. 


366 


ch.  XIII.]  SUITS  AGAINST   COUNTIES.  §  278 

responsible  for  the  value  of  the  services  of  sucli  counsel  ;* 
but  cases  of  emergency  and  the  like  may  arise  in  which 
the  mayor  has  such  power,  even  though  its  exercise  is 
contrary  to  the  charter  provisions  of  the  city,^ — e.  g.  in 
case  of  mandamus  proceedings  to  compel  the  mayor  to 
sign  an  illegal  issue  of  bonds,  where  the  legal  and  legis- 
lative departments  of  the  city  are  arrayed  against  the 
mayor  in  such  proceedings,  and  refuse  to  give  him  legal 
aid  or  to  furnish  him  with  counsel  to  represent  himself 
and  the  city  in  such  proceedings,  in  which  case  he  may 
employ  counsel  to  appear  and  defend  in  the  proceedings, 
and  the  city  will  be  liable  for  the  value  of  the  legal  serv- 
ices rendered  in  the  proceeding,  notwithstanding  the  fact 
that  the  employment  of  the  counsel  by  the  mayor  was 
contrary  to  the  express  provisions  of  the  city  charter.^*' 

§  278.  Counties  :  Suits  by  and  against  —  Power  to 
EMPLOY  counsel.  Boards  of  Supervisors  have  power  to 
employ  other  counsel  than  the  district  attorney  to  assist 
iu  or  to  conduct  the  prosecution  or  defense  of  any  suit 
to  which  the  county  is  a  party,  which  power  extends 
equally  to  suits  to  which  it  is  a  party  upon  the  record, 
and  to  those  in  the  prosecution  or  defense  of  which  it  has 
or  is  supposed  to  have  some  interest.  The  judgment  and 
discretion  of  the  board  in  the  exercise  of  this  power  are 
not  open  to  review  by  the  courts.^     But  the  board  of 

8  Carroll  v.  St.  Louis,  City  of,  12  Seattle,  City  of,  7  Wash.  576,  28 
Mo.  444;   Bryan,  City  of,  v.  Page,      Am.  St.  Rep.  905,  35  Pac.  415. 

51    Tex.    532,    32    Am.    Rep.    637;  i  Santa  Cruz  County  v.  Barnes, 

Wiley  V.  Seattle,  City  of,  7  Wash.  9    Ariz.    48,    76    Pac.    622;     Horn- 

576,  38  Am.  St.  Rep.  905,  35  Pac.  blower  v.  Duden,  35  Cal.  664;  Las- 

415,  sen  County  v.  Shinn,  88  Cal.  510, 

9  Wiley  V.  Seattle,  City  of,  7  512,  513,  26  Pac.  365;  Miller  v.  Fin- 
Wash.  576,  38  Am.  St.  Rep.  905,  35  egan,  26  Fla.  29,  6  L.  R.  A.  813,  7 
Pac.  415.  See  Louisville,  City  of,  So.  140  (recognizing  doctrine); 
V.  Murphy,  86  Ky.  53,  5  S.  W.  194;  Wilhelm  v.  Cedar  County,  5  Iowa 
Barnet  v.  Paterson,  City  of,  48  254;  Thacher  v.  Commissioners,  13 
N.  J.  L.  395,  6  Atl.  15.  Kan.  182;  Ellis  v.  Washoe  County, 

10  Barnet  v.  Paterson,  City  of,  7  Nev.  291,  293;  Clark  v.  Lyou 
48  N.  J.  L.  395,  6  Atl.  15;  Wiley  v.      County,  8  Nev.  181,  188;  Martin  v. 

367 


§§279,280  CODE  PLEADING  AND   PRACTICE.  [Pt.  I, 

supervisors  of  a  county  can  not  delegate  to  another  the 
discretionary  power  to  determine  whether  a  suit  shall  be 
commenced  or  defended  in  the  name  of  the  county,  and  to 
retain  attorneys  for  the  purpose  thereof.^  The  power  of 
the  board  of  super\dsors  has  been  said  to  be  limited  to 
employing  counsel  to  assist  the  district  attorney  in  prose- 
cuting or  defending  suits  in  which  the  county  is  interested 
as  a  party,^  but  this  is  a  limitation  not  justified  by  the 
weight  of  authority;'*  thus,  the  board  of  supervisors  can 
not  employ  special  counsel  to  influence  legislation,^  to  dis- 
cover property  omitted  from  taxation,*'  and  since  the  year 
1883,  in  California,  they  can  not  employ  special  counsel  to 
recover  license  taxesJ 

§  279.  Eminent  domain — Who  may  appear.  In  pro- 
ceedings for  the  condemnation  of  lands  under  the  power 
of  eminent  domain,^  all  persons  in  occupancy  of,  or  hav- 
ing or  claiming  an  interest  in  any  of  the  property  de- 
scribed in  the  complaint,  or  in  the  damages  for  the  taking 
thereof,  though  not  named,  may  appear,  plead  and  de- 
fend, in  person  or  by  attorney,  in  like  manner  as  if  named 
in  the  complaint.^ 

§  280.  Escheat  proceedings — Who  may  appear.  All 
persons  named  in  the  information^  may  appear  in  person 

Whitman  County,  1  Wash.  533,  537,  6  Chase    v.     Boulder    County 

20  Pac.  599.  Commrs.,    37    Colo.    272,    11    Ann. 

See,  also,  note   L.   R.  A.  1917D,      Gas.  483,  86  Pac.  1012. 

251.  7  Merced    County    v.    Cook,    120 

Compare:  Claugh  v.  Hart,  8 Kan.      ^al.  275,  276,  52  Pac.  721. 

493,  holding  that  county  may  not 

employ  other  counsel  to  perform 

services  which  law  requires  to  be 

performed  by  county  attorney.  .j...     .^,-  ^„,j. 

„     ,,  Ti   xi        r^        t.       en      Adjudicated     Forms    of     Pleadmg 

2  ScoUay   v.   Butte      County,    67  \   ^      ^.  ,    ,  n^o    p 

_  ,    „        -tr-A    n  -o       cc-i  a"d   Practice,  vol.  1,  p.  972,  form 

Cal.  24;^,  254,  7  Pac.  661.  m      i^n^i 

3  Merriam  v.   Barnum,   116   Cal, 

619,  622,  623,  48  Pac.  727.  -  See  Kerr's  Cyc.  Cal.  Code  Civ. 

4  See    cases    collected    in    note      Proc,    §,  1246. 

L.  R.  A.  1917D,  251.  i  Form  of  information  to  declare 

5  Colusa  County  v.  Welch,  122  estate  of  decedent  escheated  to 
Cal.  428,  432,  55  Pac.  243.  the   state,   see  Jury's  Adjudicated 

368 


1  Form  of  complaint  or  petition 
to  condemn  land  under  the  power 
of  the  eminent  domain,  see  Jury's 


ell.  Xlll.]  HEIRSHIP rUOCEEDINGS    AS    TO.  §  281 

or  by  attorney  and  answer,  or  traverse  and  deny  the  facts 
stated  in  such  information,  at  any  time  before  the  time 
for  answering  or  otherwise  pleading  expires.  Any  other 
persons  claiming  an  interest  in  the  estate  may  likewise 
appear  and  be  made  defendants,  on  motion  made  for  that 
purpose  in  open  court,  and  may  likewise  answer  or  other- 
wise plead  within  the  time  allowed  therefor. ^ 

§  281.  Heirships  :  Proceedings  to  determine  —  Who 
MAY  appear.  On  the  filing  of  a  petition^  by  any  one  claim- 
ing to  be  an  heir  to  or  in  the  estate,  being  administered, 
of  a  decedent,  or  claiming  to  be  entitled  to  a  distributive 
share  of  the  whole  or  any  part  of  such  estate,  all  the  per- 
sons named  in  the  order-  of  notice^  issued  by  the  court, 
and  all  persons  not  named  in  the  court's  order  and  in  the 
notice  served  who  have  or  claim  any  interest  in  the  estate 
of  the  decedent,  may  appear  in  person  or  by  attorney 
within  the  time  limited  in  the  order  of  the  court  thereto- 
fore made,  and  file  a  written  appearance,  either  in  person 
or  by  a  duly  authorized  attorney,  such  attorney  filing  at 
the  same  time  written  evidence  of  his  authority  to  ap- 
pear,"* entry  of  which  appearance  shall  be  made  in  the 
minutes  of  the  court  and  in  the  register  of  the  proceed- 
ings of  said  estate.^ 

Forms  of  Pleading  and  Practice,  Law  and  Practice,  vol.  2,  p.  1302, 
vol.  1,  p.  984,  form  No.  506.  §  731. 


2  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §1271;  Consolidated 


3  Form  of  notice  on  filing  peti- 
tion   to    determine    heirship,    see 
Cliurch's    Probate    Law   and    Prac- 
Supp.   1906-1913,  p.   1828.  ^.^^    ^^,_  2,  p.  1301.  §  730. 

1  Form  of  petition  to  deter-  4  Form  of  attorney's  authority  to 
mine  heirship,  see  Jury's  Adjudi-  appear  in  proceedings  to  deter- 
cated  Forms  of  Pleading  and  j^jne  heirship,  see  Church's  Pro- 
Practice,  vol.  1,  p.  10G2,  form  No.  bate  Law  and  Practice,  vol.  2,  p. 
528;    Church's    Probate    Law    and  ]303_  §733. 

Practice,  vol.  2,  p.  1300,   §  729.  5  See  Kerr's  Cyc.  Cal.  Code  Civ. 

2  Form  of  order  of  court  upon  Proc,  §1664;  2  Church's  Probate 
filing  of  petition  to  determine  Law  and  Practice,  p.  1297,  §§728 
heirship,    see    Church's     Probate  et  seq. 

I  Code  PI.  and  Pr.— 24  359 


§§  282, 283  CODE  pleading  and  practice.  [Pt.  I, 

•^  282.  Husband  and  wife — Appeaeance  in  suit  against. 
In  California  where  a  married  woman  is  sued  her  hus- 
band must  be  joined  as  a  party  defendant/  and  where 
husband  and  wife  are  sued  together,  the  wife  may  not 
only  appear  and  defend  her  own  right,  but  may  defend 
that  of  her  husband,  also,  when  he  neglects  to  appear  and 
defend.-  But  to  constitute  an  appearance  by  either  hus- 
band or  wife  there  must  be  filed  a  written  notice  of  ap- 
pearance,^ or  there  must  be  some  act  done  or  word  spoken 
in  court  by  the  party  charged  with  appearing.  A  recital 
in  the  record  that  ''now  comes  the  parties  by  counsel,  and 
the  plaintiff  mthdraws"  a  paragraph  of  his  complaint, 
and  that  one  of  the  defendants  (being  the  husband)  filed 
his  answer,  held  not  to  show  an  appearance  by  the  wife.^ 

<^  283.  Infants,  incompetents  or  insane  persons — Ap- 
pearance BY.  An  infant,  when  suing  or  sued,  must,  in 
California,  appear  and  prosecute  by  general  guardian  or 
by  a  guardian  ad  litem,  whether  the  suit  be  in  a  court  of 
record^  or  in  a  justice's  court.^  We  have  already  seen 
that  a  genera]  guardian,^  or  a  natural  guardian,*  may 
appear  and  waive  service  of  process  on  an  infant  de- 
fendant ;  but  that  a  guardian  ad  litem^  or  an  inf ant*"'  can 
not  waive  process  or  service  thereof  or  the  formal  facts 
of  the  service.  It  is  especially  provided  by  statute  that 
in  all  matters  concerning  the  estates  of  deceased  persons 
in  which  an  infant  is  interested,  his  general  guardian  may 
appear  for  his  ward  and  waive  any  process,  order  or 
notice  to  show  cause. "^    Where  in  a  suit  against  infants 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  Proc,  2d  ed.,  §372;   Consolidated 

Proc,  2d  ed.,  §370;    Consolidated  Supp.  1906-1913,  p.  1409. 

Supp.  1906-1913,  p.  1408.  -'  See  Kerr's  Cyc.  Cal.  Code  Civ. 

3  See  Kerr's  Cyc.  Cal.  Code  Civ.  Proc,  §  843. 

Proc,  §  371.  3  See,  ante,  §  253,  footnote  3. 

3  See  Kerr's  Cyc.  Cal.  Code  Civ.  4  Id.;   footnote  4. 

Proc,  §  1014.  5  See,  ante,  §254,  footnote  5. 

4  Rhoades    v.    Delaney,    50    Ind.  cid.;    footnote  6. 

468.  7  See  Kerr's  Cyc.  Cal.  Code  Civ, 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.      Proc,  §  1722. 

370 


ch.  XIII. 


INFANTS   AND   INCOMPETENTS. 


§283 


there  was  no  personal  service  upon  them,  but  tlieir  gen- 
oral  guardian  appeared  and  defended  for  them,  it  was 
held  that  such  appearance  gave  the  court  jurisdiction  of 
their  persons.*  The  general  rule  is  that  an  infant  must 
appear  by  his  guardian,  and  that  an  appearance  by  an 
attorney  is  not  sufficient,^  because  an  attorney  has  no 
authority  to  enter  an  appearance  for  an  infant  not  legally 
served  with  process,^^  even  though  employed  for  that  pur- 
pose by  the  natural  guardian,^ ^  and  such  an  appearance 
will  not  bind  an  infant  not  served  with  process. i-  Yet  it 
has  been  held  in  California^^  and  Missouri,^^  and  perhaps 
elsewhere,  that  a  judgment  rendered  against  an  infant 
in  an  action  in  which  he  has  appeared  by  an  attorney 
without  the  appointment  of  a  guardian  ad  litem  will 
be  upheld  as  fully  as  though  he  had  appeared  in  person ; 
but  it  has  been  questioned  whether  this  rule  applies  in  a 
probate  contest.^^ 


s  Smith  V.  McDonald,  42  Cal.  484. 

See,  also,  authorities  cited,  ante, 
§  253,  footnote  3. 

0  Lee  V.  Jenkins,  30  Miss.  592; 
Winston  v.  McLendon,  43  Miss. 
254;  Clarke  v.  Gilmanton,  12  N.  H. 
515. 

As  to  what  does  not  constitute 
appearance  by  an  infant,  see  note, 
63  Am.  Dec.  558. 

Infant  can  not  appoint  attorney, 
or  acknowledge  that  service  of 
process  legally  made,  or  waive 
any  formal  part  of  the  service  of 
process  by  instructing  attorney  to 
appear. — Clarke  v.  Gilmanton,  12 
N.  H.  515. 

10  Peak  V.  Shasted,  21  111.  138, 
74  Am.  Dec.  83;  Bonnell  v.  Holt, 
89  111.  77;  Timmons  v.  Timmons, 
6  Md.  8;  De  La  Hunt  v.  Holder- 
baugh,  58  Ind.  285;  Armstrong  v. 
Wyandotte  Bridge  Co.,  1  McC. 
(Kan.)  166;  Goodridge  v.  Ross,  47 
Mass.  (6  Mete.)  487;  Bailey  v.  Mc- 


Ginnis,  57  Mo.  362;  Gamoche  v, 
Prevost,  71  Mo.  84;  Bloom  v.  Bur- 
dick,  1  Hill  (N.  Y.)  131,  37  Am. 
Dec.  299;  Cruikshank  v.  Gardner, 
2  Hill  (N.  Y.)  333;  Mackey  v.  Grey, 
2  Johns.  (N.  Y.)  192;  Comstock  v. 
Carr,  6  Wend.  (N.  Y.)  526;  Mercer 
v.  Watson,  1  Watts  (Pa.)  330; 
Russell  V.  Texas  &  P.  R.  Co.,  68 
Tex.  646;  Starbird  v.  Moore,  21  Vt. 
529;  Somers  v.  Rogers,  26  Vt.  585. 

11  Priest  V.  Hamilton,  2  Tyl. 
(Vt.)  50. 

12  Valentine  v.  Cooley,  19  Tenn. 
(Meigs)   613,  33  Am.  Dec.  166. 

13  Childs  V.  Lanterman.  103  Cal. 
387,  390,  42  Am.  St.  Rep.  121,  37 
Pac.  382.  See:  Foley  v.  California 
Horseshoe  Co.,  115  Cal.  184,  196, 
5G  Am.  St.  Rep.  94.  47  Pac.  42; 
Johnston  V.  Southern  Pac.  R.  Co., 
150  Cal.  535,  539,  540,  11  Ann.  Gas. 
841,  89  Pac.  350. 

14  Townsend  v.  Cox,  45  Mo.  401. 

15  Harris.  Estate  of,  3  Cof.  Prob. 
(Cal.)    7. 


371 


§§284,285  CODE   PLEADING   AND    PRACTICE.  [Pt.  I, 

Incompetent  and  insane  persons  are  governed  by  the 
same  rule  as  to  their  metho'^  '^f  appearance,  and  regulated 
therein  by  the  same  secti.  of  the  Code  of  Civil  Pro- 
cedure relating  to  and  controlling  infants,  as  above 
given.  ^^ 

§  284.  Partners  :  Suits  by  and  against — Appearance. 
Where  four  partners,  doing  business  under  a  firm  name, 
are  sued  under  that  firm  name,  and  also  as  a  corpo- 
ration, a  general  appearance  under  that  name  will  pre- 
clude their  objecting  to  the  manner  of  service  of  process  ;^ 
and  such  general  appearance  will  be  not  only  for  the 
copartnership  but  for  each  member  thereof.-  Where  to 
a  libel  against  three  partners,  one  appeared  and  put  in  a 
plea  in  behalf  of  himself  and  Ms  copartners,  to  which 
the  plaintiff  replied  as  to  a  plea  of  the  firm,  and  the 
rejoinder  was  signed  by  the  ''proctor  for  the  defend- 
ants : "  it  was  held  a  sufficient  legal  appearance  of  all  the 
defendants  to  sustain  the  judgment  against  them.^  One 
member  of  a  partnership  may  acknowledge  service  of 
process  for  the  firm,*  on  the  theory  that  notice  to  one 
partner  is  notice  to  all  f  but  an  appearance  by  one  mem- 
ber only  of  a  partnership,  binds  the  firm  assets  only." 

§  285.    State  :     Suits   by^   and   against — Appearance  : 
Divorce  proceedings.    In  an  action  against  a  state,  on  an 

ifi  See  footnotes  1,  2  and  7,  this  Patterson.    1    Blackf.    (Ind.)    :527; 

section.  The  Joseph  H.  Toone,  Blatchf.  Pr. 

1  A  n  g  1  o-American    Packing    &  259,  Fed.  Gas.  No.  7542. 
Provision  Co.  v.  Turner  Casing  Co.,  4  Lucas    v.    Bank    of    Darien,    2 
34  Kan.  940,  8  Pac.  403.  Stew.  (Ala.)  280,  319. 

Partners    all    appearing    advan-  After    dissolution    the    rule    is 

tage    can    not    be    taken    of    any  otherwise.— Demott    v.     Swam,     5 

irregularity  in  the  service  of  pro-  Stew.  &  P.  (Ala.)  296. 

cess. — Beal    v.    Snedicar,    8    Port.  5  King   v.   National    Oil    Co.,    81 

(Ala.)  525.  Mo.  App.  165. 

2  A  n  g  1  o-American    Packing    &  6  Taylor  v.   Felder,   3   Ga.  App. 
Provision  Co.  v.  Turner  Casing  Co.,  110,  59  S;  E.  329. 

34  Kan.  340,  8  Pac.  403.  i  Governor    may    bring    suit    in 

s  Hill  V.  Ross,  3  U.  S.   (3  Dall.)      name  of  state  to  enjoin  corpora- 

331,  1  L.  Ed.  623.     See:   Lagow  v.      tion   from   committing    waste. — 

372 


ell.  XIII,]  SUITS   AGAINST   TOWNS.  §  286 

order  giving  the  state  leave  to  appear  and  answer,  a  de- 
murrer signed  by  the  attorney-general  of  the  state,  as 
such,  he  being  a  practitioner  in  the  court,  has  been  said 
to  be  an  appearance  for  the  state,-  and  that  if  not  so 
intended  the  demurrer  can  not  be  filed  or  considered  by 
the  court.^  If  the  state  shall  neglect  or  refuse  to  appear 
upon  due  service  of  process,^  no  coercive  measures  will 
be  taken  to  compel  appearance,  but  the  plaintiff  will  be 
allowed  to  proceed  ex  parte.^ 

In  divorce  proceedings,  the  statute  requiring  the  state 
to  be  represented  at  the  trial,^  a  record  reciting,  in  the 
findings  of  the  court,  in  connection  with  the  appearance 
of  the  parties,  "and  the  state  of,"  naming  the  state,  ''ap- 
peared by,"  naming  the  person,  ''district  attorney";"  or 
showing  that  the  state  ' '  appeared  through  its  attorney, ' ' 
naming  him,  and  that  "the  district  attorney  of  the  county 
of,"  naming  it,  "appeared  in  person,"^ — this  is  sufficient 
to  show  an  appearance  by  the  state,  and  satisfy  the  re- 
quirements of  the  statute. 

<§>  286.  Towns  :  Suits  by  and  against — Power  to  employ 
COUNSEL.  Towns,  like  cities,^  may,  in  a  proper  case,  em- 
state  V.  Huston,  21  Okla.  786,  97  5  New  Jersey  v.  New  York,  30 
Pac.  984.                                                      U.  S.    (5  Pet.)    284,  8   L.   Ed.  127; 

2  New  Jersey  v.  New  York,  31  Massachusetts  v.  Rhode  Island,  ?y~ 
V.  S.  (6  Pet.)  323,  8  L.  Ed.  414.  U.  S.   (12  Pet.)  755,  9   L.  Ed.  1272. 

Suit   to   enjoin   state   attorney-  United    States   permitted   to    ap- 

general  from  enforcing  void  state  pear  and  take  part  in  the  contro- 

rate   regulation   of  railroads,   is   a  versy,   without   becoming  a  party 

suit  against  the  state. — Young,  Ex  to  the  action,  in  Florida  v.  Georgia, 

parte,  209  U.  S.  188,  52  L.  Ed.  740,  58   U.    S.    (17    How.)    478,   493,    15 

14    Ann.    Cas.    764,    13    L.    R.    A.  L.  Ed.  181,  189. 
(N.  S.)   932,  28  Sup.  Ct.  Rep.  441.  6  As  under  Oregon  statute,  Ore. 

3  Id.  Laws,  §  1020,  as  amended  by  Laws 

4  Process  should  be  served  upon  1911,  p.  127. 

state    governor    and    attorney-gen-  7  Jacobs  v.  Jacobs,  79  Ore.  143, 

eral. — New    Jersey   v.    New    York,  154  Pac.  749. 

30  U.  S.  (5  Pet.)  284,  8  L.  Ed.  127;  s  Crim  v.  Grim,  80  Ore.  88,  155 

Ayers,    In    re,    123    U.    S.    497,    31  Pac.  175. 

L.  Ed.  227,  8  Sup.  Gt.  Rep.  178.  i  See,  ante,  277. 

373 


§§287,288  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

ploy  counsel  other  than  the  town  attorney,-  or  an  attorney 
to  assist  the  town  attorney  in  a  litigation  f  and  may  em- 
ploy counsel  to  defend  town  officers  sued  for  acts  done  in 
the  performance  of  their  official  duty,  or  reimburse  them 
for  money  expended  as  counsel  fees  in  such  case.^ 

§  287.  Vessels  :  Actions  against — Who  may  appear.  In 
California,  when  an  action  is  commenced  against  any 
vessel,  its  owner,  or  the  master,  agent  or  consignee 
thereof,  on  behalf  of  the  o^\Tier,  may  appear  and  answer 
or  other^vdse  plead  to  the  action ;  may  except  to  the  suffi- 
ciency of  the  sureties  on  the  undertaking  filed  by  the 
plaintiff,  and  may  require  sureties  to  justify.^ 

§  288.  Withdrawal  of  appearance  —  Allowance  and 
EFFECT.  A  notice  of  general  appearance,  once  served, 
should  not  be  \\dthdra\vn  without  leave  of  court  first  ob- 
tained;^ but  a  withdrawal,  without  leave  of  court  first 
obtained,  leaves  the  record  in  a  condition  in  which  a  judg- 
ment by  default  for  want  of  an  appearance  can  be 
granted,-  or  the  court  may  proceed  as  though  the  de- 
fendant were  still  in  its  presence.^  A  withdrawal  "with- 
out prejudice^  to  the  plaintiff"  of  a  general  appearance 
entered  by  an  attorney  for  the  defendant  means  that  the 

2  Denver,  City  of,  v.  Webber,  15  i  See  Kerr's  Cyc.  Cal.  Code  Civ. 

Colo.  App,  511,  63  Pac.  804;  People  Proc,  §  821. 

V.  Warren,  14  111.  App.  296.  i  Gait  v.  Provident  Sav.  Bank,  18 

Town  attorney  acted  against  the  Abb.  N.  C.  (N.  Y.)  431. 

measure  the  town  trustees  advo-  As   to   effect   of   withdrawal    of 

cated. — Denver,    City   of,   v.   Web-  appearance,  see  discussion  in  First 

ber,  15  Colo.  App.  511,  63  Pac.  804.  Nat.  Bank  v.  Cunningham,  48  Fed. 

••:  Truman  v.   Perry,   City   of,   11  517. 
Okla.  66,  65  Pac.  923;  Holdenville,  2  Rio  Grande  Irr.  Co.  v.  Gilder- 
City  of,  V.  Lawson,  40  Okla.  38,  135  sleeve,   174   U.    S.    606,   43    L.    Ed. 
Pac.  405.  1104,  19  Sup.  Ct.  Rep.  762. 

4  Cullen  V.   Carthage,   Town  of,  3  Graham    v.    Spencer,    14    Fed. 

103   Ind.   196,   53   Am.    Rep.   504,   2  607. 

N.  E.  571;   Moorehead,  City  of,  v.  4  Meaning    of    phrase    "without 

Murphy,  94  Minn.  123,  110  Am.  St.  prejudice." — See  Bloxham  v.  Flor- 

R  e  p.    345,    3    Ann.    Cas.    434,    68  ida  Coast  R.  Co.,  39   Fla.   294,  22 

L.  R.  A.  400,  102  N.  W.  219.  So.  708. 

374 


eh.  XIII.]  WITHDRAWING   APPEARANCE.  §  288 

rights  of  plaintiff  are  not  to  be  unfavorably  affected  by 
such  withdrawal ;  and  where  defects  in  service  had  been 
healed  by  such  appearance,  advantage  could  not  again  be 
taken  of  them  on  account  of  the  withdrawal.^  Nor  can 
a  party  served  by  publication,  who  answers,  be  allowed 
to  avoid  the  effect  of  such  appearance,  and  have  the  case 
proceed  as  though  he  had  been  so  served  and  had  not  an- 
swered, by  withdrawing  his  answer  and  paying  fees.*"' 

5  Creighton  v.  Kerr,  87  U.  S.  (20  <>  Williams    v.    Huling,    43    Tex. 

Wall.)  8,  22  L.  Ed.  309.  113. 


375 


CHAPTER  XIV. 

NOTICE  OF  LIS  PENDENS. 

§  289.  In  general. 

§  290.  Limited  to  state  courts. 

§  291.  Filing  of — Necessity  for. 

§  292.  Commencement  of  action  not  notice. 

§  293.  Effect  of  failure  to  file. 

§  294.  When  to  be  filed. 

§  295.  The  notice — What  to  contain. 

§  296.  New  notice  necessary  when. 

§  297.  Actual  notice — Effect  of. 

§  298.  Effect  of  lis  pendens — In  general. 

§  299.  Constructive  notice. 

§  300.  Time  of  commencement. 

§  301.  Property  affected  by — In  general. 

§  302.  Personal  property. 

§  303.  Actions  to  which  applicable — In  general. 

§  304.  Creditors'  suit. 

§  305.  Divorce  proceedings. 

§  306.  Ejectment  and  actions  to  quiet  title. 

§  307.  Eminent  domain  proceedings. 

§  308.  Mechanics'  lien  foreclosure. 

§  309.  Partition. 

§  310.  Replevin  of  personal  property. 

§  311.  Tax  suit. 

§  312.  Vendor's  lien :  Action  to  enforce  notes. 

§  313.  Territorial  operation  of. 

§  314.  Diligence  in  prosecution  necessary. 

§  315.  Lien  of  judgment  or  decree. 

§  316.  Operation  and  eft'ect — Purchaser  pendente  lite. 

§  317,  Purchaser  bound  by  decrees. 

§  289.  Ix  GENERAL.  Ill  California,  in  any  action  affect- 
ing the  title  to  or  the  right  of  possession  of  real  property, 
the  plaintiff,  at  the  time  of  filing  tlae  complaint,  or  the 
defendant,  at  the  time  of  filing  an  answer  in  which  affirma- 

27G 


eh.  XIV.]  LIS   PENDENS — LIMITATION.  §  290 

tive  relief  is  claimed,  or  at  any  time  afterward  during  the 
pendency  of  the  action,  may  file  and  record  in  the  office 
of  the  county  recorder  of  the  county  in  which  the  property 
is  situated,  a  notice  of  the  pendency  of  the  action. ^  This 
notice  must  contain  the  names  of  the  parties  to  the  action, 
state  the  object  of  the  action  or  defense,  and  a  description 
of  the  land.^  From  the  time  of  filing  such  notice  for 
record  it  will  be  binding  upon  subsequent  purchasers  or 
encumbrancers  of  the  property  affected  thereby.^  This 
is  true  of  actions  for  the  condemnation  of  land  under  the 
power  of  eminent  domain,"*  in  actions  to  quiet  title,"*  and 
in  partition,^  giving  constructive  notice  of  the  pendency 
of  the  action,'^ 

§  290.  — —  Limited  to  state  courts.  The  provisions  of 
the  California  statutes,  referred  to  in  the  preceding  sec- 
tion, are  limited  in  their  operation  and  effect  to  actions 
brought  in  the  state  courts ;  they  do  not  apply  to  proceed- 
ings in  federal  courts  ;^  and  the  same  is  true  of  all  similar 
state  statutes.^  Neither  those  statutes  nor  any  equivalent 
proceeding  has  been  incorporated  into  the  rules  of  tlie 
United  States  supreme  court,  as  applicable  to  suits  in 
equity,  nor  into  the  rules  of  the  United  States  circuit 
court  for  the  ninth  circuit,^  or  of  any  other  federal  cir- 
cuit.'* 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  As    to    territorial    operation    of, 

Proc,  §  409.  see.  post,  §  313. 

-  Id.  -  Stewart  v.  Wheeling  &   L.   E. 

3  Id.  R.   Co.,    53    Oliio   St.    151.    167.    29 

4  See  Kerr's  Cyc.  Cal.  Code  Civ.  |_  r_  a.  438,  41  N.  E.  217;  RoniPii 
Proc,  2d  ed.,  §1243;  Consolidated  ^  Todd.  206  U.  S.  363.  TA  L.  Ed. 
Supp.,  p.  1822.  JQ35    27  Sup.  Ct.  Rep.  721. 

-,  P--  Kerr's  Cyc.  Cal.  Code  Civ.  ,,    .,    ^  ,     .-o 

^      ^^^n.r.    nr-,  --{Majors   V.   Cowcll.   51   Cal.   4.8. 

Proc.T,§  749,  751. 

r.  Id  ,  §  755.  ■*  ^^^  Romen  v.  Todd.  206  U.  S. 

7  Id.'  §  409.    See,  also,  post.  §  299.      363.  51  L.  Ed.  1095,  27  Sup.  Ct.  Rep. 

1  Majors  v.  Cowell,  51  Cal.  478,      721. 
4S2. 

377 


§§291,292  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

<^  291.  Filing  of — Necessity  for.  A  notice  of  lis  pen- 
dens must  be  filed  and  appear  of  record  to  charge  the 
purchaser  of  the  subject-matter  of  the  suit  as  a  purchaser 
pendente  lite  at  common  law ;  mere  pendency  of  the  suit 
does  not  so  charge  the  purchaser.^  A  notice  of  lis  pen- 
dens binds  a  subsequent  purchaser  or  incumbrancer  from 
the  date  on  which  it  is  filed  for  record  only.-  If  no  notice 
of  lis  pendens  is  filed,  a  bona  fide  purchaser  of  land,  mth- 
out  notice  of  proceedings  pending  for  its  condemnation  at 
time  of  purchase,  is  not  affected  by  the  proceedings.^  The 
statutory  mode  must  be  followed  or  there  can  be  no  notice 
of  lis  pendens  as  to  third  parties.* 

§  292.    Commencement  of  action  not  notice.  The 

commencement  of  an  action  is  not  notice  to  subsequent 
purchasers  and  incumbrancers  of  the  pendency  thereof.^ 
The  commencement  of  a  suit  in  equity  is  constructive 
notice  of  the  pendency  of  such  suit,  only,  as  against  per- 
sons who  acquired  an  interest  under  a  defendant  pendente 
lite.-  The  mere  pendencj^  of  a  suit,  where  the  bill  does 
not  lay  claim  to  any  specific  land,  nor  to  all  the  land  of 
defendant  in  a  particular  county  or  place,  but  asks  merely 
for  a  discovery  of  any  land  in  which  he  has  invested 
money,  is  not  a  constructive  notice  of  an  equity  in  any 
particular  piece  of  land  held  by  defendant.^     The  com- 

1  Head  v.  Fordyce,  17  Cal.  149;  102;  Sampson  v.  Ohleyer,  22  Cal. 
Ault    V.    Gassaway,    18    Cal.    205;       200. 

Sampson  v.   Ohleyer,  22  Cal.  200,  See,  post,  §§  293,  297. 

211;    Warnock  v.  Harlow,  96  Cal.  4  Pennington  v.  Martin,  146  Ind. 

298,  304,  31  Am.  St.   Rep.   212,   31  635,  637,  45  N.  E.  1111. 

Pac.  166;  Gilman  v.  Carpenter,  22  i  Majors  v.  Cowell,  51  Cal.  47S, 

N.  D.  129,  115  N.  W.   662;    Pitt  v.  489. 

Rogers,    104    Fed.    387,    390,    43  See,  ante,  §  291,  footnote  1;  also 

C.  C.  A.  600.  notes,  14  Am.  Dec.  776;  56  Am.  St, 

See,  also,  post,  §  292.  Rep.  860. 

2  See  Kerr's  Cyc.  Cal.  Code  Civ.  2  Stuyvesant  v.  Hall,  2  Barb.  Cli. 
Proc,  §  409.  (N.  Y.)  151. 

3  Bensley  v.  Mountain  Lake  3  Griffith  v.  Griffith,  9  Paige  Ch. 
Water  Co.,  13  Cal.  306,  73  Am.  Dec.  (N.  Y.)  315,  reversing  1  Hoffm.  Ch. 
575;  Richardson  v.  White,  18  Cal.  (N.  Y.)   153. 

378 


eh.  XIV.]  FAILURE   TO   FILE   LIS   PENDENS.  §  293 

mencement  of  an  equitable  action  by  service  of  summons 
and  injunction  creates  a  lis  pendens  and  a  lien  in  the 
nature  of  an  attachment,  but  the  plaintiff  is  bound  to 
prosecute  diligently  to  retain  the  lien.^  Mere  issuing 
of  process  is  not  sufficient  to  create  a  lis  pendens  as 
against  a  purchaser  without  actual  notice.  Service  is 
necessary,  though  it  need  not  be  personal.^  But  filing  a 
bill,  and  attempting  to  serve  the  process,  are  sufficient 
against  the  defendant  and  a  purchaser  with  notice.*^  Until 
the  process  is  served  by  publication  made,  the  doctrine  of 
lis  pendens  does  not  apply."  But  this  can  not  be  the  rule, 
except  in  those  states  where  the  action  is  commenced  by 
service  of  summons.  In  California  the  complaint  precedes 
the  summons,  and  must  be  filed  before  the  action  is 
deemed  commenced  or  the  summons  issued.  In  a  suit 
to  foreclose  a  mortgage  given  by  a  copartnership,  when- 
ever any  member  of  the  copartnership  is  served  with  a 
summons,  a  lis  pendens  is  at  once  created  to  such  an 
extent  that  no  person  can  purchase  from  any  member  of 
the  firm  any  portion  of  the  subject-matter  of  the  action 
so  as  to  affect  the  rights  of  the  plaintiff.^ 

§  293.    Effect  of  failure  to  file.  We  have  already 

pointed  out  some  of  the  effects  of  a  failure  to  file  a  notice 
of  lis  pendens  ;^  it  remains  but  to  add  that  if  notice  of 
lis  pendens  be  not  filed,  plaintiff  can  not  successfully  sot 
up  that  notice  would  have  done  no  good  to  the  purchaser, 
because  he  could  make  no  defense,  or  no  better  defense 
than  the  vendor.-    Where  no  notice  is  filed,  constructive 

4  Myrick   v.    Selden,    36    Barb.  sSee:    Knowles    v.   Roblin,    20 
(N.  Y.)  15.                                                  Iowa    101;    Dresser    v.    Wood,    15 

5  Hayden  v.  Bucklin,  9  Paige  Ch.      Kan.   360. 

(N.  Y.)   512.  J  gpg    ^^^^    g  291,  footnote  3. 

fild.;    Weed  v.   Small,   3    Sandf. 

Ch    (NY)   273  Title    of    bona    fide    purchaser 

7  Gaines  v.  Stiles  ex  dem.  Dunn,  ^vithout  notice  is  not  affected  by 

39  U    S    (14  Pet.)   322,  10  L.  Ed.  Judgment  where  no  notice   of  lis 

476,  afRrminglMcL.  321,  Fed.'cas^  pendens     was     filed.  —  Corwin     v. 

No.  4176.     See  Fowler  v.  Byrd,  1  Bensley.  43  Cal.  253,  259. 

Hempst.  213,  Fed.  Cas.  No.  4999a.  2  Richardson  v.  White,   18   Cal. 

379 


§§294,295  CODE   PLEADING   AND   PRACTICE.  [ft.  I, 

notice^  is  implied  on  the  part  of  persons  dealing  with  the 
subject-matter,  after  trial  and  judgment,  only.* 

^  294.    When  to  be  filed.    We  have  already  seen^ 

that,  in  California,  in  any  action  affecting  the  title  to  real 
property,  the  plaintiff,  at  the  time  of  filing  the  complaint, 
and  the  defendant,  at  the  time  of  filing  his  answer,  when 
affirmative  relief  is  claimed  in  such  answer,  or  at  any 
time  afterwards,  may  file  with  the  recorder  of  the  county 
in  w^hich  the  property  is  situated  a  notice  of  the  pendency 
of  the  action.-  A  purchaser  of  real  property,  pending 
suit  affecting  the  title  to  it,  is  not  bound  by  the  judgment 
unless  notice  of  lis  pendens  be  filed  with  the  county 
recorder  before  the  purchase.^  The  court  has  no  power 
to  take  from  the  files  a  lis  pendens  regularly  filed.* 

§  295.  The  notice — What  to  contain.  We  have  al- 
ready seen^  that,  in  California,  the  notice  of  lis  pendens 
should  contain  the  names  of  the  parties  to  and  the  object 
of  the  action,  and  also  a  description  of  the  property  in  the 
county  to  be  affected  thereby ;  and  that  the  defendant  may 
also  state  in  such  notice  the  nature  and  extent  of  the  relief 
demanded  in  the  answer.-  The  description  of  the  prop- 
erty to  be  affected  should  be  so  specific  and  certain  that 
any  one,  reading  it,  can  readily  learn  what  property  is 
intended  to  be  made  the  subject  of  the  litigation  or  to  be 
affected  thereby.^'     If  the  notice  contains  the  necessary 

102;    Sampson  v.  Ohleyer,  22  Cal.  Ct.  Rep.  (5  Duer)  631,  12  How.  Pr. 

200;  Horn  v.  Jones,  28  Cal.  194.  215. 

:!  As  to  constructive  notice,  see,  i  See,  ante,  §  289. 

post,  §  299.  -  See  Kerr's  Cyc.  Cal.  Code  Civ. 

4  Abadie  v.  Lobero,  36  Cal.  390,  Proc,  §  409. 

400;  Pennington  V.  Martin,  146  Ind.  3  Ray   v.   Roe,    1    Blackf.    (Ind.) 

635,'  638,  45  N.  E.  1111.  258;   Stone  v.  Connelly,  58  Ky.  (1 

I'see,  ante,  §  289.  Mete.)  652,  71  Am.  Dec.  499;  Grif- 

2  See  Kerr's  Cyc.  Cal.  Code  Civ.  fith  v.  Griffith,  9  Paige  Cr.  (N.  Y.) 
Proc,  §  409.  315,  317,  reversing  1  Hoff.  Ch.  153; 

3  Richardson  v.  White,  18.  Cal.  Jaffrey  v.  Brown,  17  Hun  (N.  Y.) 
102.  575;    Badger  v.    Daniel,    77   N.   C. 

4  Pratt  v.  Hoag,  12  N.  Y.  Super.  251;  Hamlin  v.  Bevans,  7  Ohio  (pt. 

380 


eh.  XIV.]  NEW    NOTICE   OF   LIS   PENDENS.  §  296 

matters,  including  a  sufficient  description  of  the  property, 
but  adds  a  conclusion  stating  that  ''the  following  real 
estate  is  intended  to  be  affected,"  and  then  adds  a  second 
description  of  the  property  which  is  erroneous,  this  sec- 
ond false  description  does  not  \4tiate  the  notice  if  the 
notice  would  have  been  good  without  it,^  for  the  reason 
that  any  person  of  reasonable  intelligence,  reading  it, 
would  not  be  misled  thereby  because  he  would  perceive 
the  error  f  the  false  description  is  mere  surplusage,  and 
the  maxim  utile  per  inutile  non  vitiatur  applies — the  use- 
ful is  not  ^-itiated  by  the  useless;^  the  court  say:  ''All 
that  the  statute  requires  is  in  the  notice,  independently 
of  this  superfluity,  which  serves  only  to  add  notice  of  a 
falsehood  to  a  notice  of  the  truth.  "^ 

§  296.    New  notice  necessaey  when.    While  it  is 

true  that  the  effect  of  a  notice  of  lis  pendens  is  not  usually 
destroyed,  or  otherwise  injuriously  affected,  by  an  amend- 
ment to  the  complaint,^  which  simply  states  some  addi- 
tional evidential  facts,  and  does  not  alter  the  cause  of 
action,  since  it  relates  back  to  the  filing  of  the  original 
complaint,^  yet  it  has  been  said  that  a  new  notice  is  neces- 

I)  161,  28  Am.  Dec.  625;  Lewis  v.  Wis.  316;  Dupont  v.  Davis,  30  Wis. 

Mew,   1   Strobh.   Eq.    (S.   C.)    180;  170. 

Miller  v.  Sherry,  69  U.  S.  (2  Wall.)  7  Watson  v.  Wilcox,  39  Wis.  643, 

237,  17  L.  Ed.  827.  20  Am.  Rep.  63. 


1  Brock  V.  Pearson,  87  Cal.  581, 
588,  25  Pac.  963. 


Irvcorrectly  describing  land  the 
subject  of  litigation  by  boundaries, 
one  of  which  was  a  river,  one  a 

road,  one  a  fenced  boundary,  and  -  Bridger  v.  Exchange  Bank,  126 

the    last    a    designated    surveyed  Ga.  S21,   115  Am.  St.   Rep.  118,  8 

line,  but  incorrectly  locating  it  in  •-.  R.  A.  (N.  S.)   463,  56  S.  E.  97; 

a    designated    corner   of   a   larger  Norris  v.  He,  152  111.  190,  43  Am. 

tract,  was  held  not  to  render  the  St.  Rep.  233,  38  N.  E.  762;  Kimball 

description  defective.— McLean  v.  v.  Hutchison,  61  Kan.  191.  59  Pac. 

Baldwin,  136  Cal.  565,  69  Pac.  269.  275;  Turner  v.  Houpt,  53  N.  J.  Eq. 

4  Watson  V.  Wilcox,  39  Wis.  643,  («  Dick.)  526,  33  Atl.  28;   Pendery 

20  Am.  Rep.  63  V-  ^Hen,  53  Ohio  St.  251,  41  N.  E. 

5jjj  255;  Cotton  v.  Docey.  61  Fed.  481. 

Bid.     See:    Thompson  v.  Jones,  Amendment    adding    value    of 

4  Wis.  106;   Jar^^is  v.  McBride.  18  I  a  n  d,    in    action    for    partition.— 

381 


§297 


CODE   PLEADING    AND    PRACTICE. 


[Pt.  I, 


sary  in  all  those  cases  in  which  the  complaint  is  amended 
by  adding-  new  parties=^  or  by  giving  a  different  descrip- 
tion of  the  land,  or  by  making  a  change  in  the  amount  of 
the  claim.^  This  new  notice  is  not  necessary  except  as  to 
such  new  parties,  so  that  should  such  new  parties  be  sub- 
sequently struck  out,  a  new  notice  will  not  be  required.^ 
However,  it  is  thought  that  the  safer  practice  is  to  file  a 
new  notice,  where  parties  are  struck  out.'' 

§  297.  Actual  notice — Effect  of.  It  has  been  said 
that  actual  notice  of  the  pendency  of  a  suit  affecting  the 
title  to  or  the  right  of  possession  of  real  property,  has  the 
same  effect  as  constructive  notice  thereof  by  filing  lis 
pendens.^     Thus,  where,  after  the  commencement  of  an 


Brandt  v.   Scribner,  13  Ariz.   169, 
108  Pac.  491. 

As  to  lis  pendens  in  partition, 
see,  post,  §  309. 

Defective  complaint  which  could 
not  operate  as  a  lis  pendens, 
amendment  does  not  relate  back. 
—Jones  V.  Lusk,  59  Ky.  (2  Mete.) 
356. 

New  ground  of  relief  destroys 
lien  of  the  lis  pendens. — Stone  v. 
Connelly,  58  Ky.  (1  Mete.)  652,  71 
Am.  Dec.  499;  Jones  v.  Lusk,  59 
Ky.  (2  Mete.)  356;  Davis  v.  Wilson, 
115  Ky.  39,  74  S.  W.  696;  Wortham 
V.  Boyd,  66  Tex.  401,  1  S.  W.  109. 
See  Cornell  University  v.  Parkin- 
son, 59  Kan.  365,  53  Pac.  138. 

— Action  to  set  aside  conveyance 
as  fraudulent  debtor  pendente  lite 
gave  a  chattel  mortgage  on  the 
building  erected  by  him  as  a 
tenant,  an  amendment  to  c  o  m- 
plaint  praying  relief  against  the 
buildings,  the  mortgage  was  held 
prior  to  the  judgment  for  the 
reason  that  when  the  suit  was 
commenced  the  buildings  were 
chattels,  and  at  the  time  of  the 
execution  o  f  t  h  e  mortgage  the 


action  was  against  the  laud  only. 
— Wheeler  &  Wilson  Mfg.  Co.  v. 
Hasbrouck,  68  Iowa  554,  27  N.  W. 
738. 

3  New  parties  added  not  neces- 
sary to  file  a  new  lis  pendens  as 
to  the  old  parties  to  the  action. — 
Waring  v.  Waring,  7  Abb.  Pr. 
(N.  Y.)   472. 

4  Clarkson  v.  Morgan's  Devisees, 
45  Ky.  (6  B.  Mon.)  441;  Clark  v. 
Havens,  1  Clark  Ch.  (N.  Y.)  560: 
Curtis  v.  Hitchcock,  10  Paige  Ch. 
(N.  Y.)  399,  2  Leg.  Obs.  363. 

5  Waring  v.  Waring,  7  Abb.  Pr. 
(N.  Y.)  472. 

6  Curtis  V.  Hitchcock,  10  Paige 
Ch.  (N.  Y.)  399,  2  Leg.  Obs.  363. 

1  Sampson  v.  Ohleyer,  22  Cal. 
200;  Sharp  v.  Lumley,  34  Cal.  611, 
615;  Martin  v,  Abbott,  72  Neb.  91, 
100  N.  W.  142;  Hovey  v.  Elliott, 
118  N.  Y.  134,  23  N.  E.  475  (apply- 
ing rule  to  purchaser  of  bonds 
with  notice,  pending  litigation); 

"No  good  reason  why  a  party 
taking  an  interest  in  a  tract  of 
land  pending  a  proceeding  to  fore- 
close a  mortgage  upon  it,  with 
actual  notice  of  the  action,  should 


382 


Ch.  XIV.]  EFFECT    OF    LIS    PENDENS.  §  298 

action  of  ejectment  against  a  tenant,  he  gave  notice  to 
his  landlord,  and  requested  him  to  defend,  and  the  latter 
(employed  an  attorney  to  conduct  the  suit,  it  was  held 
that  the  actual  notice  given  to  the  landlord  was,  as  to  him, 
equivalent  to  the  filing  of  a  lis  pendens,  and  in  an  equal 
degree  made  the  subsequent  judgment  obligatory  upon 
him.2  So,  also,  actual  notice  of  the  pendency  of  a  suit  in 
foreclosure  is  the  same  in  effect,  to  the  party  receiving  it, 
as  if  notice  of  lis  pendens  had  been  filed.^ 

<§.  298.  Effect  of  lis  pendens — In  general.  The  effect 
of  a  notice  of  lis  pendens  is  to  make  a  subsequent  pur- 
chaser or  incumbrancer  from  or  of  a  party  to  the  action 
a  mere  volunteer,  affected  by  the  judgment  which  may  be 
rendered  in  the  suit  in  which  notice  is  given  ;^  and  it  abro- 
gates the  rule  making  the  mere  pendency  of  an  action 
constructive  notice.-  The  California  statute  does  not  give 
any  new  rights  to  the  plaintiff,  but  limits  rights  which  he 
had  before;  it  simply  adds  to  the  common-law  rule  a 
single  term,  to-wit,  to  require  for  constructive  notice,  not 
only  a  suit,  but  filing  notice  of  it;  and  there  is  no  distinc- 
tion under  the  statute  between  different  kinds  of  interest 
in  or  title  to  real  estate.^  A  notice  of  lis  pendens  does  not 
affect  the  title  to  the  land  or  give  constructive  notice 

n  o  t  be  bound  by  the  judgment,  Mfg.  Co.  v.  Brown,  8   Wash.  347, 

although  no  notice  of  lis  pendens  351,  36  Pac.  273. 

had  been  filed. — Sharp  v.  Lumley,  'i  Gregory  v.  Haynes,  13  Cal.  591. 

34   Cal.   611,  615.  5  9  4;    Haynes    v.    Calderwood,    23 

Purchaser  with    notice,    from  Cal.  409;   Hurlbutt  v.  Butenop,  27 

party  to  suit,  during  the  pendency  Cal.   50,  56;    Sharp  v.  Lumley,  34 

of  the  action,  must  apply  to  court  Cal.   611,   615;    Amador  County  v. 

for  leave  to  protect  his  interest  in  Mitchell,  59  Cal.  178;  Hillside  Coal 

the    suit. — Corwin   v.    Bensley,    43  &  I.  Co.  v.  Heermans,  191  Pa.  St. 

Cal.  253;   Walker  v.  Sanders,  103  119,  43  Atl.  76   (applying  doctrine 

Minn.  127,  123   Am.  St.   Rep.   126,  of   notice    of   lis    pendens   to   one 

114  N.  W.  650.  purchasing    fourteen    years    after 

2  Sampson  v.  Ohleyer,  22  Cal.  the  commencement  of  the  action). 
200.  -  Sampson  v.   Ohleyer,  22   Cal. 

3  Sharp  V.  Lumley,  34  Cal.  611.  200. 

See:    Whittaker  v.  Greenwood,  17  .'?  Richardson   v.   White,    18    Cal. 

Utah  33,  36,  53   Pac.  736;    Pacific      102;    Sampson  v.  Ohleyer,  22  Cal. 

383 


§  299  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

unless  recorded.*  Notice  by  lis  pendens  does  not  extend 
so  as  to  affect  those  who  claim  under  parties  who  were 
not  parties  to  the  litigation  f  and  it  does  not  operate  as 
notice,  unless  the  court  has  jurisdiction  of  the  thing.'^ 
Notice  of  lis  pendens  filed  by  plaintiff  imparts  notice  to  a 
purchaser  from  him  pending  the  suit,  so  that  a  judgment 
adverse  to  the  plaintiff  would  bind  such  purchaser.'  The 
onh^  office  of  the  lis  pendens  is  to  give  constructive  notice 
to,  and  bind  by  the  subsequent  proceedings,  those  who 
deal  with  the  parties  to  the  suit  in  regard  to  the  property 
involved  in  the  action  during  its  pendency  and  before 
judgment;  no  notice  is  necessary  to  bind  a  purchaser  or 
incumbrancer  after  judgment.^  A  lis  pendens  does  not 
in  and  of  itself  affect  the  title  to  the  property,  its  sole 
office  being  to  give  constructive  notice'^  of  the  pendency 
of  the  action;  thus,  filing  a  notice  of  lis  pendens  in  an 
action  to  foreclose  a  lien  will  not  establish  the  lien's 
priority  as  against  a  purchaser  under  an  execution  sale 
pending  the  foreclosure  of  the  lien.^*^ 

§  299.  Constructive  notice.  A  notice  of  lis  pen- 
dens, filed  in  accordance  with  the  statutory  regulations,^ 

liOO;    Horn  v.  Jones,   28  Cal.   194;  21  Pac.  1037;  Carrington  v.  Brents, 

McXamara  v.  Oakland  Building  &  1  McL.  167,  Fed.  Cas.  No.  2446. 

L.  Assoc,  132  Cal.  247,  249,  64  Pac.  t  Welton   v.    Cook,   61    Cal.    481, 

277;    Hall   v.   Nelson,   22   Barb.  distinguishing  Corwin  v.  Bensley, 

( x\.  Y.)    88,  14  How.  Pr.  32.  43  Cal.  259,  263,  as  not  an  adjudi- 

4  Richardson  v.  White,  18  Cal.  cation  upon  this  point.  See 
102;  Sampson  v.  Ohleyer,  22  Cal.  Bridger  v.  Exchange  Bank,  126  Ga. 
2QQ  827,  115  Am.  St.  Rep.  118,  8  L.  R.  A. 

(N.  S.)  463,  56  S.  E.  100. 

Purchaser   required   to   examine  «  Abadie  v.  Lobero,  36  Cal.  390; 

lis   pendens  filed   in  the   county  gt^g^i^an  v.  Andrews,  49  N.  Y.  478. 

where  the  land  lies,  only.-Samp-  ,^  ^^  ^^  constructive  notice,  see, 

son  V.  Ohleyer,  22  Cal.  200.  ,.    g  299 

5  Scarlett  v.  Gorham,  28  111.  319;  10  Purser  v.  Cady,  120  Cal.  214, 
Gilman  v.  Carpenter,  22  S.  D.  130,  53  pac.  489. 

115  N.  W.  662.  1  A.s    California    statute,   Kerr's 

6  See:  Houston  v.  Timmerman,  Cyc,  Cal.  Code  Civ.  Proc,  §  409. 
17  Ore.  490,  11  Am.  St.   Rep.  848,      See,  also,  ante,  §  289. 

384 


I 


Ch.  XIV.]  CONSTRUCTIVE  NOTICE.  §  299 

is  constructive  notice-  to  a  subsequent  purchaser  or  in- 
cumbrancer, and  he  and  his  interest  will  be  bound  by  the 
decree  entered  in  the  suit.^  The  only  way  to  charge  a 
purchaser  or  incumbrancer  of  property  pending  a  suit 
with  constructive  notice  of  the  suit  is  by  filing  a  notice  of 
lis  pendens  according  to  the  statute.''  From  the  time  of 
filing  only,  shall  the  pendency  of  the  action  be  construc- 
tive notice  to  a  purchaser,  or  incumbrancer  of  the  prop- 
erty affected  thereby.^  But  a  purchaser  of  land  subject 
to  the  lien  of  a  mortgage  is  not  affected  by  lis  pendens, 
where  the  title  to  the  mortgage  only  was  involved  in  the 
suit,  and  not  the  land  itself.^  The  notice  of  lis  pendens 
applies  to  parties  to  the  action  and  purchasers  and  incum- 
brancers under  them  subsequent  to  filing  the  notice ;"  and 
is  as  effectual  as  an  injunction.^  But  a  notice  of  lis 
pendens,  filed  and  recorded  as  provided  by  statute,  is  not 
notice  to  a  bona  fide  purchaser  from  a  person  not  a  party 
to  the  action,  and  holding  by  a  title  antedating  the  com- 
mencement of  the  action  in  which  the  notice  of  lis  pendens 
Avas  filed.^ 

:j  As  to   actual   notice  and  its  4  Ault  v.  Gassaway,  18  Cal.  205; 

effect,  see,  ante,  §  295.  Sampson  v.  Ohleyer,  22  Cal.  200, 

•iSee:   Welton  v.  Cook,  61  Cal.  21I;    Grattan  v.  Wiggins,   23   Cal. 

4S1,  486;  Pearson  v.  Creed,  78  Cal.  ^g^  gg.   corwin  v.  Bensley,  43  Cal. 

144,  20  Pac.  302;   Randall  v.  Duff,  253    263 
79  Cal.  115,  3  L.  R.  A.  754,  19  Pac. 

532.  21  Pac.  610;  Brock  v.  Pearson,  '  ^ee  Kerr's  Cyc.  Cal.  Code  Civ. 

87   Cal.   581,   588,   25   Pac.    963;  ^^°^-  §  ^°9- 

Bridger  v.  Exchange  Bank,  126  Ga.  6  Green  v.  Rick,  121  Pa.  St.  130, 

827,  115  Am.  St.  Rep.  118,  8  L.  R.  A.  6  Am.  St.  Rep.  760,  2  L.  R,  A.  48, 

(N.   S.)    463,  56   S.  E.   100;    Sears  15  Atl.  497. 

V.  Hyer,  1  Paige  Ch.  (N.  Y.)  483;  ^  Chapman  v.  VV^est,  17  N.  Y.  125. 

Harrington  v.  S  1  o  d  e,  22  B  a  r  b.  affirming  10  How.  Pr.  367;  People 

(N.  Y.)  161.  ^^  j,^j    Tremont  Bank  v.  Connolly, 

^^See,  also,  note,  56  Am.  St.  Rep.  ^  ^^^    ^^    ^^    ^^  ^^8. 

Amendment  to   complaint   after  «  Stevenson  v.  Fayerweather,  21 

filing  and  recording  notice  of  lis      How.  Pr.   (N.  Y.)   449. 
pendens    does    not   destroy    or   in  » Noyes   v.   Crawford,    118    Iowa 

any  way  affect  the  notice.— 87  Cal.      18,  96  Am.  St.  Rep.  363,  91  N.  W. 
581,  588,  25  Pac.  963.  799. 

I  Code  PI.  and  Pr.— 25  385 


§§300,301  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

*§  300.    Time  of  commencement.    The  time  of  the 

commencement  of  a  notice  of  lis  pendens  to  impart  con- 
structive notice^  is  largely  a  matter  of  the  wording  and 
provisions  of  the  statute  under  which  filed.  In  Oregon  a 
notice  of  lis  pendens  operates  as  notice  to  subsequent 
purchasers  and  incumbrancers  from  the  date  on  which 
the  complaint  is  filed  and  the  summons  is  served,-  while 
in  Kansas  and  elsewhere  the  mere  filing  of  a  petition  and 
the  issuance  and  service  of  process  is  not  sufficient  to  start 
the  notice  of  lis  pendens  running.'*  In  California,  by 
statutory  provision,  the  notice  becomes  effective  on  the 
date  when  filed  with  the  county  recorder  for  record."* 

§  301.  Property  affected  by — In  general.  The  doc- 
trine of  constructive  notice  to  subsequent  purchasers  and 
incumbrancers  by  a  notice  of  lis  pendens,  filed  and  re- 
corded as  required  by  statute,  requiring  all  the  world  to 
take  notice  of  litigation  and  proceedings  pending  in  court, 
does  not  apply  to  commercial  paper  taken  before  matur- 
ity,^ although  a  different  rule  applies  where  taken  after 
maturity ;-  but  it  does  apply  to  choses  in  action^  and  other 

1  As  to  constructive  notice,  see,  Leitch  v.  Wells,   48  N.  Y.   585; 

ante,  §  299.  Stone  v.  Elliott,  11  Ohio  St.  252, 

:i  Walker  v.  Goldsmith,   14   Ore.  258;    Keifer  v.   Ehler,    18    Pa.   St. 

125,   12  Pac.  537.  388;  Hill  v.  Kroft,  29  Pa.  St.  186; 

3  See  Campbell  v.  Reese,  8  Kan.  Diamond  v.  Lawrence  County,  37 

App.  518,  56  Pac.  543.  Pa.  St.  353,  78  Am.  Dec.  429;   Day 

■i  See  Kerr's  Cyc.  Cal.  Code  Civ.  v.  Zimmerman,  68  Pa.  St.  72,  8  Am. 

Proc,  §  409.  Rep.  157;  Board  v.  Texas  &  P.  R. 

1  Wiston    V.    Westfeldt,    22    Ala.  Co.,   46   Tex.   316;    National   Bank 

760,  58  Am.  Dec.  278;  Mayberry  v.  v.  Texas,  87  U.  S.    (20  Wall.)    72, 

Morris,  62  Ala.  113;    Powell  v.  88,  22  L.  Ed.  295,  298;   Kellogg  v. 

National    Bank    of    Commerce,    19  Fancher,  23  Wis.  21,  99  Am.  Dec. 

Colo.  App.  57,  74  Pac.  536;   Miner  96;    Warren  County  v.   Marcy,   97 

V.   West,   38   Ga.    18,   95   Am.    Dec.  U.  S.  96,  24   L.  Ed.  977;   Durant  v. 

379;  .Junction  R.  Co.  v.  Cleney,  13  Towa  County,  1  Woolw.  69,  73,  Fed. 

Ind.  163;   State  v.  Wichita  County  Cas.  No.  4189;   Myers  v.  Hazzard, 

Commrs.,  59  Kan.  512,  53  Pac.  526;  4  McC.  94,  50  Fed.  55. 

C  a  r  r  v.  Lewis  Coal  Co.,   15  Mo.  2  Kellogg  v.  Fancher.  23  Wis.  21, 

App.   551;    Murry  v.  B  a  11  o  u,   1  99  Am.  Dec.  96. 

.Johns.  Ch.   (N.  Y.)   566;    Murry  v.  .s  Diamond  v.  L.awrence  County, 

Lyburn,  2  Johns.  Ch.   (N.  Y.)   441;  37  Pa.  St.  353,  78  Am.  Dec.  429. 

386 


ch.  XIV.] 


WHAT   AFFECTED   BY   LIS    PENDENS. 


§301 


personal  property,  although  the  courts  are  not  in  har- 
mony on  the  latter  point  ;^  e.  g.,  bank  stock,^  furniture,** 
municipal  aid  bonds  issued  to  assist  in  the  construction 
of  a  railroad  and  the  like,"  though  not  to  county  bonds'*  or 
municipal  bonds  generally  where  purchased  for  value 
before  maturity  without  actual  notice,"  patent  rights  pur- 
chased pendente  lite,^*'  railroad  bonds, ^^  and  property  on 
which  a  chattel  mortgage  is  being  foreclosed. ^^ 

County  bonds:  Where  a  bill  was  filed  enjoining  a  county 
from  issuing  bonds,  and  injunction  was  granted  subse- 
quently. A  statute  was  passed  authorizing  the  issue,  and 
the  issue  was  made.  A  year  after  the  statute,  another 
bill  was  brought  to  declare  the  bonds  invalid,  but  they 
were  decreed  good.  Two  years  after  this  decree,  a  bill 
of  review  was  brought,  and  the  former  decree  reversed ; 
it  was  held  that  the  bonds  were  not  issued  pendente  lite.^^ 


4  See,  post,  §  302. 

sLeitch  v.  W^  e  1 1  s,  48  Barb. 
(N.  Y.)  637,  but  this  case  was  re- 
versed in  48  N.  Y.  585. 

fi  Scudder  v.  Van  A  m  b  u  r  g,  4 
Edw.  Ch.    (N.  Y.)    29. 

7  Diamond  v.  Lawrence  County, 
37  Pa.  St.  353,  78  Am.  Dec.  429. 

Compare,  however.  New  Albany, 
L.  &  C.  Plank  Road  Co.  v.  Smith, 
23  Ind.  355;  Mercer  County  v. 
Hackett,  68  U.  S.  (1  Wall.)  83,  95, 

17  L.  Ed.  548. 

>*  Warren  County  v.  Marcy,  97 
U.  S.  96,  24  L.  Ed.  797. 

nSee:  Winston  v.  Westfield,  22 
Ala.  760,  58  Am.  Dec.  278;  Minns 
V.  West.  38  Ga.  18,  95  Am.  Dec. 
379;  Leitch  v.  Wells,  48  N.  Y.  585, 
586;  Stone  v.  Elliott,  11  Ohio  St. 
252;  Keifer  v.  Ehler,  18  Pa.  St. 
388;  De  Vos  v.  Richmond,  City  of, 

18  Gratt.    (Va.)    338,  98   Am.   Dec. 
646;  Olcott  v.  Fond  du  Lac  County 


Supervisors,  83  U.  S.  (16  Wall.) 
6  7  8,  2  1  L.  Ed.  382,  reversing  2 
Diss.  368,  Fed.  Cas.  No.  104  79; 
National  Bank  of  Washington  v. 
Texas,  87  U.  S.  (20  Wall.)  72,  22 
L.  Ed.  295;  Warren  County  v. 
Marcy,  97  U.  S.  96,  24  L.  Ed.  977; 
Warren  County  v.  Post,  97  U.  S. 
110,  24  L.  Ed.  982  note;  Warren 
County  V.  Portsmouth  Sav.  Bank. 
97  U.  S.  110,  24  L.  Ed.  9S2  note; 
Orleans  v.  Piatt,  99  U.  S.  676,  25 
L.  Ed.  404;  Cass  County  v.  Gillett, 
100  U.  S.  5  8  5,  2  5  L.  Ed.  5  8  5; 
Durant  v.  Iowa  County,  1  Woolw. 
69  Fed.  Cas.  No.  4189. 

10  Tyler  v.  Hyde,  2  Blatchf.  308, 
Fed.  Cas.  No.  14309. 

11  Diamond  v.  Lawrence  County, 
37  Pa.  St.  353,  78  Am.  Dec.  429. 

iL' Boiling  V.  Carter,  9  Ala.  921; 
Broom  v.  Armstrong,  137  U.  S.  266, 
34  L.  Ed.  648,  11  Sup.  Ct.  Rep.  73. 

13  Lee  County  v.  Rogers,  74 
U.  S.  (7  Wall.)  181,  19  L.  Ed.  160, 


387 


§302 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I, 


^302. 


Personal,  peoperty.     Supplementing  what 


is  said  in  the  preceding  section,  it  is  to  be  noted  that  the 
question  as  to  whether  personal  property  is  subject  to  the 
doctrine  of  lis  pendens  is  one  upon  which  the  decided 
cases  are  not  agreed,  some  cases  excluding  from  the 
operation  of  the  doctrine  of  lis  pendens  all  articles  of 
ordinary  commerce  sold  in  the  usual  way,^  as  well  as  all 
movable  personal  property, — such  as  horses,  cattle,  grain, 
and  the  like;-  other  cases  hold  that  the  doctrine  of  lis 
pendens  applies  with  equal  force  to  controversies  in  re- 
gard to  personal  property  as  to  those  involving  the  title 
to  real  estate;^  while  still  other  cases  are  unwilling  to 
hazard  a  ruling  upon  the  precise  question.^  It  may  at 
least  be  safely  said  that  the  general  tendency  of  the  courts 
at  the  present  time  is  to  limit  the  application  of  the  doc- 
trine of  constructive  notice  by  a  notice  of  lis  pendens  to 
suits  affecting  real  estate  f  and  the  statutes  in  many,  if 
not  all,  the  jurisdictions,  as  in  California,^  contemplate 


1  Carr  v.  Lewis  Coal  Co.,  15  Mo. 
A  p  p.  551;  Warren  County  v. 
Marcy,  97  U.  S.  96,  24  L.  Ed.  977. 

2  Winston  v.  Westfeldt,  22  Ala. 
760,  58  Am.  Dec.  278;  Miles  v. 
Lefi,  60  Iowa  168,  14  N.  W.  233; 
Chase  v.  Searls,  45  N.  H.  511,  517; 
Murry  v.  Lyburn,  2  Johns.  Ch. 
(N.  Y.)    441. 

3  Bowell  V.  National  Bank  of 
Commerce,  19  Colo.  App.  57,  74 
Pac.  536;  Blake  v.  Bigelow,  5  Ga. 
439 ;  Bank  v.  Burke,  4  Blackf . 
(Ind.)  144;  McCutchen  v.  Miller, 
31  Miss.  65,  83;  Bergman  v.  Inman, 
43  Ore.  459,  99  Am.  St.  Rep.  771, 
72  Pac.  1086;  Berry  v.  Gibbons, 
L.  R.  8  Ch.  749,  but  this  last  case 
has  been  reversed;  see  Wigram  v. 
Buckley,  C.  A.  (1894)  3  Ch.  494. 

See  authorities  cited,  post,  §  310. 

See,  also,  Bennetton  Lis 
Pendens,  §§83,  128,  129;  4  Cent. 
L.  J.  27;  31  Cent.  L.  J.  54. 


In  Colorado,  under  Mill's  Ann. 
Code,  §  36,  while  the  doctrine  of 
lis  pendens  has  been  relaxed  as 
to  real  estate,  as  to  personal  prop- 
erty it  remains  as  at  common  law. 
— Powell  V.  National  Bank  of  Com- 
merce, 19  Colo.  App.  57,  74  Pac. 
536,  citing  Leitch  v.  Wells,  48  N.  Y. 
585,  602. 

Legs  purchased  pending  litiga- 
tion to  determine  a  claim  of  lien, 
taken  subject  to  determination  of 
court  in  judgment  to  be  thereafter 
rendered. — Bergman  v.  Inman,  43 
Ore.  459,  99  Am.  St.  Rep.  771,  72 
Pac.  1086. 

4  McLourine  v.  Monroe,  30  Mo. 
462. 

5  Houston  V.  Timmerman,  17  Ore. 
499,  11  Am.  St.  Rep.  848,  4  L.  R.  A. 
716,  21  Pac.  1037. 

0  Kerr's  Cyc.  C^.  Code  Civ. 
Proc,  §  409. 


388 


ch.  XIV.]  ACTIONS    TO    WHICH    APPLICABLE.  §  30J 

and  comprehend  within  their  provisions  suits  affecting 
real  estate  only.  Lord  Justice  Lindley,  after  reviewing 
all  the  English  cases  on  the  question,  says:  I  am  of 
opinion  that  the  doctrine  of  lis  pendens  is  inapplicable  to 
personal  property,  other  than  chattel  interests  in  land. 
The  inconvenience  of  extending  the  rule  to  ordinary  per- 
sonal property  is  so  extremely  serious  that,  in  my  opinion, 
it  would  be  wrong  to  so  extend  it,  even  if  such  extension 
could  be  justified  by  reasoning  from  well-established  gen- 
eral propositions  which  might  serve  as  premises  for  ar- 
riving at  such  a  conclusion.'^ 

§  303.  Actions  to  which  applicable — In  general.  The 
sole  object  of  a  notice  of  lis  pendens  is  (1)  to  give  parties 
already  interested  either  in  the  title,  or  in  the  right  to 
possession,  a  chance  to  defend,  and  (2)  to  notify  third 
persons  becoming  subsequent  purchasers  or  incumbran- 
cers pending  of  the  litigation  ;^  and  applies  to  all  actions 
which  affect  the  title  to  land,  or  the  right  to  the  pos- 
session thereof;-  and  according  to  the  doctrine  of  some 
of  the  cases,  applies,  also,  to  suits  affecting  personal 
property.^  The  right  to  file  a  notice  of  lis  pendens  in  all 
actions  in  which  the  rule  or  doctrine  is  applicable,  is  an 
absolute  right,"*  and  applies  to  the  defendant  seeking 
affirmative  relief  as  well  as  the  plaintiff.^  The  main  pur- 
pose of  the  rule  or  doctrine  is  to  keep  the  subject-matter 
of  the  litigation  within  the  power  of  the  court  until  the 
judgment  or  decree  has  been  entered;  otherwise  the  judg- 
ment or  decree  might  be  rendered  abortive  and  impossible 
of  execution  by  successive  alienations  pending  the  litiga- 
tion.^ 

T  Wigram     v.     Buckley,     C.     A.  3  See,  ante,  §§  301,  302, 

(1894)  3  Ch.  494.  4  Mills  v.  Bliss,  55  N.  Y.  139. 

1  Richardson   v.   White,   18   Cal.  ^  g^^_  ^^^^^  g  289. 

102;    Sampson  v.  Ohleyer,  22  Cal. 

o„A     TT  T  oo   /-.  1    tnA.  G  Houston  V.  Timmerman,  17  Ore. 

200;    Horn  v.  Jones,  28   Cal.  194 

„,  T        1        r>l  r^  ^    cto  490,  11  Am.  St.  Rep.  848,  2  L.  R.  A. 

Sharp  V.  Lumley,  34  Cal.  612.  '         „  „  „ 

,Tr       .       n  n„i      ^   ^^     r.j,r        716,  21  Pac.  1037. 

•2  Kerr  s    Cyc.    Cal.     Code    Civ. 

Proc,  §  409. 

389 


§304 


CODE   PLEADING   AND   PRACTICE. 


fPt.  1, 


§304. 


Creditors'  suit.    The  equitable  doctrine  of 


constructive  notice  by  lis  pendens  applies  to  a  creditor's 
suit  on  the  filing  of  his  complaint  or  bill  to  subject  prop- 
erty of  the  defendant  to  the  payment  of  his  judgment 
theretofore  recovered  at  law,  and  creates  a  lien  upon  the 
effects  of  the  judgment  debtor/  giving  priority  over  all 
other  judgment  creditors,-  which  lien  is  not  divested  by 
the  death  of  the  debtor;"  but  to  constitute  a  lis  pendens 
the  complaint,  bill  or  petition  must  be  filed  and  the  sum- 
mons served  upon  the  defendant  and  other  party  inter- 
ested,^ and  some  of  the  cases  hold  that  a  creditor's  suit 
creates  no  lien  in  favor  of  the  plaintiff  in  the  absence  of 
an  injunction.^  The  fact  that  a  final  decree  in  a  creditor's 
suit,  establishing  the  lien,  is  not  rendered  until  long  after 
the  judgment  at  law,  which  it  is  sought  to  enforce,  has 


1  Miller  v.  Sherry,  69  U.  S.  (2 
Wall.)  237,  17  L.  Ed.  827.  See 
Plumb  V.  Bateman,  2  App.  D.  C. 
17  1;  Weightman  v.  Washington 
Critic  Co.,  4  App.  D.  C.  143;  Met- 
calf  V.  Barker,  187  U.  S.  172,  47 
L.  Ed.  126,  23  Sup.  Ct.  Rep.  70; 
Adler  Goldman  Commission  Co.  v. 
Williams,  211  Fed.  536. 

Lien  of  creditors'  Bill  on  profits 
derived  from  mortgaged  property, 
held  to  be  superior  to  that  of  mort- 
gagee in  such  profits,  in  American 
Bridge  Co.  v.  Heidelbach,  94  U.  S. 
800,  24  L.   Ed.  144. 

Personal  property  held  not  to  be 
affected,  in  Meredith  v.  Thompson, 
4  Alaska  370. 

Suit  to  cancel  land  contract  and 
to  enjoin  conveyance,  acts  as  an 
equitable  levy  on  the  property. — 
Waters  v.  Shinn,  178  Fed.  357. 

•1  Lyon  v.  Robbinson,  46  111.  280. 

Judgment  creditors  rn  a  k  i  n  g 
levies  and  then  filing  creditors' 
bills  to  set  aside  fraudulent  con- 
veyance  and   subject   property   to 


payment  of  their  judgments, 
priorities  are  in  order  of  levies  and 
not  in  order  of  filing  bills  in  the 
creditors'  suits.  —  Kinmouth  v. 
White,  61  N.  J.  Eq.  362,  48  Atl. 
954. 

3  King  v.  Goodwin,  130  111.  108, 
17  Am.  St.  Rep.  279,  22  N.  E.  534. 

4  Hallorn  v.  Trum,  125  111.  254, 
17  N.  E.  825;  Walker  v.  Goldsmith, 
14  Ore.  149,  12  Pac.  557. 

See,  post,  footnote  14,  this  sec- 
tion, and  text  going  therewith. 

As  to  when  bill  operates  as  lis 
pendens,  see  Hayden  v.  Thrasher, 
28  Fla.  184,  9  So.  860. 

5  Rioux  V.  Cronin.  222  Mass.  139, 
109  N.  E.  901. 

Injunctional  order  in  creditors' 
suit  to  subject  debt  owing  to  non- 
resident defendant  to  payment  of 
judgment  against  him, -restraining 
payment  of  such  debt  to  such  non- 
resident defendant,  constitutes  an 
equitable  levy  on  the  same. — 
Bragg  V.  Gaynor,  85  Wis.  487,  21 
L.  R.  A.  167,  55  N.  W.  925. 


390 


ell.  XIV.]  APPLICABLE   TO    CREDITORS'   SUIT.  §  304 

ceased  to  be  a  lien,  by  reason  of  the  operation  of  the 
statute  of  limitations,  is  immaterial. *"'  Filing  a  creditor's 
suit  four  months  before  bankruptcy  proceedings  are  insti- 
tuted, gives  a  lien  on  the  bankrupt's  property,^  which 
dates  from  the  filing  of  the  bill,  and  is  not  affected  by  the 
subsequent  filing  of  the  petition  in  bankruptcy,**  the  trus- 
tee in  bankruptcy  taking  subject  to  the  lien  f  but  filing  a 
bill  to  dissolve  a  corporation  has  no  effect  upon  a  prior 
attachment, — it  merely  suspends  liens  which  can  be  en- 
forced in  a  court  of  equity,  only.^°  A  creditor's  suit  to 
subject  property  bought  with  the  proceeds  of  a  fraudu- 
lent sale,  brought  after  the  lapse  of  the  period  of  limita- 
tion, is  barred,  even  though  the  proceeds  were  first  in- 
vested in  another  state.^^  When  notice  of  the  pendency 
of  a  suit  against  a  conveyance  in  fraud  of  creditors  has 
been  filed,  a  conveyance  of  the  property  made  since  the 
filing  of  the  bill  can  not  affect  the  complainant's  rights. ^- 
A  creditor's  bill,  to  be  a  lis  pendens,  must  be  so  definite 
in  the  description  of  the  estate  that  any  one  reading  it 
can  learn  thereby  what  property  is  the  subject  of  litiga- 
tion.^^ 

Simple-contract  creditor  may  file  a  creditor's  suit  to 
subject  property  of  the  defendant  to  the  pa^Tuent  of  his 
claim,  and  acquire  a  lien  on  the  defendant's  property 
superior  to  the  rights  of  subsequent  purchasers  thereof. 
Thus,  where  such  a  creditor  of  an  insolvent  corporation 

r.  Davidson  v.  Burke,  143  111.  148,   Atl.  670.  See  Hines  v.  Duncan,  79 

36  Am.  St.  Rep.  373,  32  N.  E.  516.   Ala.  118,  58  Am.  Rep.  584. 

TMetcalf  V.   Barker,    187    U.    S.        ^''  ^'"ller  v.  Horner,  69  Kan.  470, 

172,  47  L.  Ed.  126,  23  Sup.  Ct.  Rep.      "^^  ^^^^  ^^• 

„„  i2Buckman   v.   Montgomery,   14 

N.   J.    Eq.    (1    McC.)    106,    80    Am. 
N  Doyle  V.  Heath,  22  R.  I.  219,  47      ^^^   ^29 

Atl.  215;  Claflln  v.  Llsso,  4  Woods  iJ  Miller  v.  Sherry,  69  U.  S.    (2 

253,  16  Fed.  898.  Wall.)    237,   17    L.    Ed.   827.     See: 

'••  Taylor  v.  Taylor,  59  N.  J.  Eq.  Norris  v.  He,  152  111.  202,  43  Am. 

89,  45  Atl.  440.  St.   Rep.  242,  38   N.  E.  765;   Jones 

i<»Cobb   V.    Camden    Sav.    Bank,  v.   McNarrin,  68   Me.  341,   28   Am. 

106  Me.   184,   20  Ann.  Cas.  547,  76  Rep.  72. 

391 


§  305  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

brought  suit  to  have  its  affairs  placed  in  the  hands  of  a 
receiver,  and  to  cancel  a  trust  deed  and  chattel  mortgage 
given  on  certain  of  its  assets  to  one  A,  and  after  personal 
service  had  been  made  upon  A,  and  pending  the  action, 
A  transferred  his  claim  against  the  insolvent  corporation, 
and  the  trust  deed  and  chattel  mortgage  securing  the 
same,  to  B ;  and  B  later  brought  suit  to  collect  the  claim, 
and  to  enforce  the  trust  deed  and  chattel  mortgage, — the 
court  held  that  the  doctrine  of  lis  pendens  applied  to  the 
sale  of  the  claim  to  B,  and  that  he  and  his  cestui  que  trust 
were  bound  by  the  decree  rendered  in  the  creditor's  suit 
for  the  cancellation  of  the  claim.^^ 

<^  305.   Divorce  proceedings.   The  general  rule  of 

law  is  that  in  proceedings  for  divorce  a  decree  of  court 
allowing  alimony,  to  be  paid  in  installments,  is  in  the 
nature  of  a  personal  charge  upon  the  husband,  rather 
than  upon  his  real  estate,  and  is  not  a  lien  upon  his  real 
estate  unless  made  so  by  the  decree,^  the  action  not  bind- 
ing the  property  with  a  lis  pendens  f  although  it  has  been 
held  that  where  one  purchases  property  from  a  husband 
during  the  pendency  of  an  action  for  divorce,  and  with 
actual  knowledge  of  such  action,  he  takes  the  property  sub- 
ject to  any  decree  that  may  be  rendered  in  such  action, — - 
that  is,  subject  to  the  doctrine  of  lis  pendens.^  Particu- 
larly is  the  rule  of  the  nonapplicability  of  the  doctrine 
of  lis  pendens  true  where  the  complaint  for  the  divorce 
does  not  describe  any  particular  piece  of  land  and  seeks  to 

Erroneous  description   of  land      Almond  v.  Almond,  4  Rand.  (Va.) 


does  not  operate  as  notice  to  sub 
sequent  purchaser. — Jones  v.  Mc 
Narrin,  63  Me.  341,  28  Am.  Rep.  72 
14  Mellen  v.  Moline  Ironworks 
131  U.  S.  352,  33  L.  Ed.  178,  9  Sup 
Ct.  Rep.  871.  See:  Dovey's  Appeal 
97  Pa.  St.  160;  Belmont  Nail  Co 
V.  Columbia  I.  &  S.  Co.,  46  Fed.  8 


662,  15  Am.  Dec.  781. 

2  Houston  V.  Timmerman,  17  Ore. 
499,  11  Am.  St.  Rep.  848,  4  L.  R.  A. 
716,  21  Pac.  1037.  See:  Scott  v. 
Rogers,  77  Iowa  483,  42  N.  W.  377; 
Feigley  v.  Feigley,  7  Md.  537,  61 
Am.   Dec.  375. 

3  Powell    V.    Campbell,    20    Nev. 


1  See:  Hamlin  v.  Bevans,  7  Ohio  232,  19  Am.  St,  Rep.  350,  2  L.  R.  A. 
(pt.  I)  161,  28  Am.  Dec.  625;  Olin  615,  20  Pac.  156;  Daniel  v.  Hodges, 
V.  Hungerford,   10   Ohio   268,  271;       87  N.  C.  95. 

392 


Ch.  XIV.]  EJECTMENT — EMINENT   DOMAIN.  §§  306,  307 

subject  it  to  tlie  payment  of  any  alimony  that  may  be 
recovered  ;*  but  when  a  wife,  suing  for  a  divorce,  in  her 
complaint  describes  the  property  of  her  husband,  and 
asks  to  have  it  set  aside  to  her  for  her  support,  the  rule 
of  lis  pendens  can  be  invoked  by  her  against  one  who  pur- 
chases during  the  pendency  of  the  action,  and  with  notice 
thereof.^ 

^  306.    Ejectment  and  actions  to  quiet  title.  The 

doctrine  of  constructive  notice  by  lis  pendens  is  appli- 
cable in  actions  of  ejectment;^  and,  in  California,  is  by 
statute  made  applicable  in  actions  to  quiet  the  title  to 
land.2 

(^  307.  Eminent  domain  proceedings.  In  Califor- 
nia, by  statute,^  the  doctrine  of  constructive  notice  by 
filing  a  notice  of  lis  pendens  is  made  applicable  to  pro- 
ceedings to  condemn  lands  under  the  power  of  eminent 
domain  f  but  it  has  been  said  that  the  doctrine  does  not 
apply  to  proceedings  before  a  board  of  supervisors  for 
condemnation  of  land  for  road  purposes.^ 

4  Hamlin  v.  Bevans,  7  Ohio  (pt.  to  prevent  the  enforcement  of  any 

I)  161,  28  Am.  Dec.  625.  decree   that  may   be   rendered,   is 

As  to   necessity  for  particular  valid,  subject  of  course  to  the 

description  of  the  land,  see,  ante,  decree. — See  Sun  Ins.  Co.  v.  White, 

§  295.  123  Cal.  202,  55  Pac.  902. 

B  Tolerton  v.  Willard,  30  Ohio  St.  i  partridge  v.   Shepard,  71   Cal. 

579.     See:    Draper  v.   Draper,   68  470,   12   Pac.   480;    Irving  v.   Cun- 

111.   17;    Sapp   v.   Weightman,    103  ningham,  77  Cal.  52,  18  Pac.  878. 

111.    150;    Harshberger   v.    Harsh-  .Kerr's     Cyc.     Cal.     Code     Civ. 

berger,  26  Iowa  503;  Wilkerson  v.  pj-oc,  §§749',  751. 


Elliott,  43  Kan.  590,  10  Am.  St. 
Rep.  158,  23  Pac.  614;  Powell  v. 
Campbell,  20  Nev.  232,  19  Am.  St. 
Rep.  350,  2  L.  R.  A.  615,  20  Pac. 
156 


1  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §1243;  Consolidated 
Supp.  1906-1913,  p.  1822. 

2  Roach  v.  Riverside  Water  Co., 


Compare:    Authority,  footnote  2,      74    Cal.   263.    15   Pac.    776;    Drink- 
this  section  house  v.   Spring  Valley   Water 

Bona  fide'  mortgage  of  separate      Works,   87   Cal.   253,   256,    25   Pac. 


property    o  f   husband    pending 

d 
t 

393 


420. 


action   by  wife   for  divorce  and  3  Curran   v.    Shattuck,    24    Cal. 

alimony,   there    being   no   interest      427. 


§§  308,  309       CODE  PLEADING  AND  PRACTICE.  [Pt.  1, 

§  308.    Mechanics'  lien  foreclosure.  The  doctrine 

of  lis  pendens  does  not  apply  in  actions  to  foreclose  a 
mechanics'  lien.^  The  purchaser  or  incumbrancer  of 
property  upon  which  a  mechanics'  lien  has  been  filed  is 
chargeable  with  notice  thereof  by  virtue  of  the  mechanics ' 
lien  statute  itself,  without  the  filing  of  a  notice  of  lis 
pendens.-  But  it  has  been  said  that  in  equity  notice  of 
lis  pendens  is  not  given  to  bona  fide  purchasers  until 
summons  served  upon  material  defendants.^  But  in 
those  cases  in  which  claimants  under  a  mechanics'  lien 
are  made  defendants  in  a  proceeding  to  foreclose  a  mort- 
gage on  the  premises  covered  by  the  mechanics '  lien,  such 
claimants  are  required  to  file  notice  of  lis  pendens  to 
protect  their  interests,  in  some  jurisdictions,^  and  this 
filing  of  notice  of  lis  pendens  must  be  made  within  the 
period  during  which  the  notice  of  claim  of  mechanics '  lien 
binds  the  property.^ 

§  309.    Partition.     By  statute  in  California,  the 

doctrine  of  lis  pendens  is  made  applicable  to  actions  for 
the  partition  of  real  estate.  Under  this  statute,  immedi- 
ately after  filing  the  complaint  in  the  superior  court,  the 
plaintiff  must  record  in  the  office  of  the  recorder  of  the 
county  or  of  the  several  counties  in  which  the  property 
is  situated  a  notice  of  the  pendency  of  the  action,  contain- 
ing the  names  of  the  parties  so  far  as  known,  the  object 
of  the  action,  and  a  description  of  the  property  to  be 
affected  thereby.  From  the  time  of  filing,  it  shall  be 
deemed  notice  to  all  persons.^  In  Arizona  the  lis  pendens 
dates  from  the  filing  of  the  complaint  for  partition,  al- 

1  See:    Sheridan  v.  Cameron,  65  4  Danziger  v.  Si-monson,  116 
Mich.  680,  32  N.  W.  894;  Julius  v.  N.  Y.  329,  22  N.  E.  570. 
Callahan,  63  Minn.  154,  65  N.  W.  r,  Hammond  v.  Shephard,  50  Hun 
267.  (N.  Y.)   318,  3  N.  Y.  Supp.  349. 

2  Empire  Land  &  Canal  Co.  v.  i  Kerr's  Cyc.  Cal.  Code  Civ. 
Engley,  18  Colo.  388,  33  Pac.  153.  Proc,  §  755. 

3  See  Armstrong  Cork  Co.  v.  As  to  necessity  for  particular 
Merchants'  Refrigerating  Co.,  107  and  accurate  description  of  the 
C.  C.  A.  93,  184  Fed.  206.  land,  see,  ante,  §  295. 

394 


L'h.  XIV.]  TO    WHAT    APPLICABLE EXTENT.  §§310-01;] 

though  the  complaint  is  thereafter  amended  so  as  to 
include  necessary  allegations  as  to  the  value  of  the  prop- 
erty.- 

§  310.    Replevin  of  personal  property.    We  have 

already  seen  the  cases  are  not  harmonious  upon  the 
question  as  to  whether  the  doctrine  of  constructive  notice 
by  lis  pendens  applies  to  personal  property.^  In  those 
jurisdictions  in  which  the  doctrine  is  held  applicable  to 
suits  affecting  personal  property,  it  applies  in  an  action 
for  the  recovery  of  the  possession  of  specific  personal 
property.^ 

§  311.  Tax  suit.  In  an  action  to  enforce  the  col- 
lection of  taxes  duly  and  regularly  assessed  by  a  fore- 
closure of  the  lien,  a  notice  of  lis  pendens  is  unnecessary, 
because  the  lien  is  given  by  statute,  and  is  binding  upon 
all  subsequent  purchasers  and  encumbrancers.^  But  it 
has  been  said  that  the  rule  does  not  apply  to  city  property 
severed  from  the  city  after  assessment  but  before  the  tax 
became  due,-  or  to  land  in  the  forest  reserve  relinquished 
to  the  United  States  after  the  tax  became  a  lien,  but  before 
the  sale  was  fixed. ^ 

§312.    Vendor's  lien:  Action  to  enforce  notes. 

An  action  to  recover  on  vendor's  lien  notes  does  not 
create  constructive  notice  by  lis  pendens  to  subsequent 
purchasers  or  incumbrancers.^ 

§  313.  Territorial  operation  of.  The  territorial  opera- 
tion of  a  notice  of  lis  pendens  is  co-extensive  with  the 
territorial  jurisdiction  of  the  court,  provided  only  that 

2  Brandt  v.   Scribner,  13  Ariz.  Adams  v.  Osgood,  42  Neb.  450,  457, 

175,  108  Pac.  493.  60  N.  W.  869. 

1  See.  ante,  §§  301,  302.  ^  Gillmore  v.  Dale,  27  Utah  377. 

~  See:  Swantz  v.  Pillow,  50  Ark.  „;.  p        „„ . 
300,   7   Am.   St,    Rep.   98.   7   S.  W. 

167;  Carr  v.  Lewis  Coal  Co..  15  Mo.  '  Territory  v.  Perrin.  9  Ariz.  320, 

App.  551.  83  Pac.  362. 

1  Reeve  v.  Kennedy,  43  Cal.  643;  i  Mansur  &  Tebbets  Implement 

Empire  Land  &  Canal  Co.  v.  Eng-  Co.  v.  Beer:  19  Tex.  Civ.  App.  311, 

ley,  18  Colo.  388,  393,  33  Pac.  153;  313,  45  S.  W.  972. 

395 


§  314  CODE   PLEADING   AND   PRACTICE.  [Pt.  T, 

the  property  to  be  affected  is  situated  within  such  terri- 
torial jurisdiction.  In  the  case  of  actions  in  a  state  court, 
in  the  absence  of  a  statute  restricting  the  operation  to  the 
particular  county  in  which  the  land  to  be  affected  is  lo- 
cated,^ the  operation  of  the  law  of  lis  pendens  extends  to 
the  boundary  of  the  state.  In  the  case  of  personal  prop- 
erty,^ in  analogy  to  the  law  applicable  to  chattel-mortgage 
liens,  under  which  on  removal  of  the  mortgaged  chattels 
to  another  state  they  are  held  to  be  subject  to  the  lien 
created  in  the  state  where  the  mortgage  was  executed,^  it 
has  been  argued  that  personal  property  removed  beyond 
the  limits  of  the  state,  pendente  lite,  remains  subject  to 
the  lien  of  the  lis  pendens,^  but  this  contention  is  not  sup- 
ported by  any  adjudicated  case,  and  is  thought  to  be 
unsound.  Where  the  action  is  in  a  federal  circuit  or  dis- 
trict court,  the  lis  pendens  has  been  said  to  affect  all 
property  situated  within  the  boundaries  of  the  district  of 
such  court,  irrespective  of  any  state  statute  upon  the 
subject.^ 

<§  314.  Diligence  in  prosecution  necessary.  After  the 
lien  of  a  lis  pendens  has  attached,  in  order  to  preserve 
that  lien,  the  plaintiff, — or  the  defendant,  where  his 
answer  asks  affirmative  relief,  and  he  files  a  lis  pen- 

1  As  under  California  statute.  7  Ohio  St.  134,  70  Am.  Dec.  62; 
See  Kerr's  Cyc.  Cal.  Code  Civ.  Craig  v.  Williams,  90  Va.  500,  44 
Proc,  §409.  A"^-   S*-    ^^P-   934,   18    S.   E.    899; 

Studebaker  Bros.   Co.   v.   Mau,   13 


As  to  restriction  to  state  court 
of  operation  of  statute,  see,  ante, 
§  290. 


Wyo.  358,  110  Am.  St.  Rep.  1001, 
80  Pac.  151;  Shepard  v.  Haynes, 
45  C.   C.  A.  271,  104   Fed.   449,   52 

2  A  s  t  o  personal  property,  see      L.  R.  A.  675. 

post,  §§  301,  302.  See,  also,  note,  70  Am.  Dec.  67- 

3  See,  among  other  cases.  Had-      72. 

ley  V.  Harris,  48  Kan.  606,  30  Am.  4  See  note,  56  Am.  St.  Rep.  8G2. 

St.   Rep.  323,  17   L.   R.  A.  703,  29  5  See:  Majors  v.  Cowell,  51  Cal. 

Pac.  1145;  Kneeman  v.  Stimson,  478;  Wilson  v.  Hefflin,  81  Ind.  35; 
32  Minn.  377,  20  N.  W.  304;  Horn-  Stewart  v.  Wheeling  &  L.  E.  R. 
thai  V.  Burwell,  109  N.  C.  10,  26,  Co.,  53  Ohio  St.  151,  41  N.  E.  247; 
26  Am.  St.  Rep.  556,  13  L.  R.  A.  Riitherglen  v.  Wolf,  1  Hughes  78, 
740,  13  S.  E.  721;  Kanoga  v.  Taylor,      Fed.  Cas.  No.  212,  175. 

39G 


Ch.  XIV.]  DILIGENT   PROSECUTION   NECESSARY. 


§3U 


dens, — must  prosecute  the  action  continuously  to  final 
judgment  or  decree  with  all  reasonable  diligence,^  and 
some  of  the  cases  hold  that  the  prosecution  must  be  ''close 
and  continuous";-  because  any  lack  of  reasonable  dili- 
gence,^ delay  or  laches  in  the  prosecution  of  the  action 
or  proceedings  which  is  injurious  to  others,  will  deprive 
such  negligent  suitor  of  his  lis  pendens  lien  as  against 
a  bona  fide  innocent  purchaser  for  value.*  Thus,  where 
the  action  or  proceeding  is  discontinued  by  the  plaintiff,^ 
dismissed  without  prejudice  by  the  court,  or  otherwise 
disposed  of  for  any  cause  except  upon  the  merits,  or  if 
the  action  or  proceedings  abate  by  the  death  of  a  party,® 
the  lien  of  the  lis  pendens  is  thereby  terminated,  although 
in  all  such  cases  a  new  action  may  be  brought,  and  a 
person  purchasing  the  property  after  such  discontinu- 
ance, dismissal,  or  abatement  and  before  a  new  action  is 
commenced,  the  action  revived,  or  a  writ  of  error  sued 
out,^  will  take  the  property  discharged  of  the  lien  of  the 
lis  pendens.^ 


1  McGregor  v.  McGregor,  21 
Iowa  441;  Watson  v.  Wilson,  32 
Ky.  (2  Dana)  406,  26  Am.  Dec. 
459;  Clarkson  v.  Morgan,  45  Ky. 
(6  B.  Mon.)  441;  Hawes  v.  Orr, 
73  Ky.  (10  Bush.)  435;  Herrington 
V.  Herrington,  27  Mo.  560;  Myrick 
V.  Selden,  26  Barb.  (N.  Y.)  15,  22. 

2  Herrington  v.  McCollum,  73  111. 
746,  484;  Trimble  v.  Boothby,  14 
Ohio  109,  45  Am.  Dec.  626;  Fox  v. 
Reeder,  28  Ohio  St.  181,  188,  22 
Am.  Dec.  370. 

3  Kentucky  rule, however,  is  that 
benefit  of  lis  pendens  is  not  lost 
by  a  failure  to  prosecute  with  even 
ordinary  diligence;  that  it  can  be 
lost  by  unusual  and  unreasonable 
negligence  in  prosecution,  only. — 
Gossom  V.  Donaldson,  57  Ky.  (18 
B.  Mon.)  237,  68  Am.  Dec.  72. 

Four  years'  delay  after  cause 
ready  for  a  hearing  without  press- 


ing for  a  decree,  held  to  be  un- 
reasonable negligence  in  Erham  v. 
Kendrick,  58  Ky.  (1  Mete.)  150. 

4  Herrington  v.  McCollum,  73  111. 
476,  483;  Fox  v.  Reeder,  28  Ohio 
St.  181,  22  Am.  Rep.  370. 

5  Pipe  v.  Jordan,  22  Colo.  392, 
55  Am.  St.  Rep.  138,  45  Pac.  371. 

6  Failure  to  revive  suit  for  period 
of  a  year,  on  the  death  of  the 
plaintiff,  will  entitle  a  purchaser 
for  value,  without  notice,  to  hold 
the  property  discharged  from  the 
lien  of  the  lis  pendens. — Hull  v. 
Deatly,  70  Ky.  (7  Bush)  691. 

7  Eldridge  v.  Walker,  80  111.  270. 

8  Herrington  v.  McCollum,  73  111. 
476;  Eldridge  v.  Walker,  80  111. 
270;  Watson  v.  Wilson,  32  Ky.  (2 
Dana)  406,  408,  26  Am.  Dec.  459; 
Herrington  v.  Herrington,  27  Mo. 
560;    Ludlow  v.  Kidd,  3  Ohio  541. 


397 


§§  315,  316       CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

§  315.  Lien  of  judgment  or  decree.  Where  a  partj^ 
having  notice  of  the  pendency  of  a  suit  to  reach  the  equi- 
table interests  of  a  judgment  debtor  in  his  lands,  pur- 
chases such  lands,  and  enters  upon  and  improves  the 
same,  he  can  not  come  into  equity  for  relief,  to  have  his 
improvements  discharged  from  the  lien  of  the  decree  ren- 
dered against  the  land.^  It  can  not  be  said  that  a  case  is 
no  longer  lis  pendens,  after  a  decree  and  sale,  and  a  con- 
veyance executed  because  a  court  of  chancery  is  not 
functus  officio  until  the  decree  is  executed  by  delivery  of 
possession.- 

<^  316.  Operation  and  effect  —  Purchaser  pendente 
LITE.  A  purchaser  pendente  lite  takes  the  property  sub- 
ject to  all  the  equities  against  the  party  under  whom  he 
claims.^  One  who  takes  an  assignment  as  indemnity 
against  a  precedent  liability  is  not  a  purchaser  within  the 
meaning  of  the  statute  requiring  notice  of  the  pendency 
of  the  suit  to  be  filed.-  One  who  purchases  land  pending 
an  action  to  foreclose  a  mortgage  on  it,  or  after  final 
judgment,  with  notice  of  the  pending  action,  or  of  the 
judgment,  is  bound  by  the  judgment.^  If  no  notice  of  lis 
pendens  has  been  filed,  and  he  purchases  without  notice 
after  entry  of  default,  but  before  final  judgment,  he  is  not 
bound  by  the  judgment,  even  if  a  final  judgment  gives 
constructive  notice  to  parties  dealing  with  the  subject- 
matter,  and  a  second  purchaser  is  in  no  worse  position 

1  Patterson  v.  Brown,  32  N.  Y.  not  mentioned  in  the  pleadings  or 
81.  judgment. — St.  John  v.  Strauss,  60 

See,  also,  post,  §  317.  Kan.  136,  55  Pac.  845. 

2  Jackson  v.  Warren,  32  111.  931.  2  Leavitt  v.  Tylee,  1  Sandf.  Ch. 
1  See:    Abbott  v.   Seventy-Six      (N.  Y.)  207. 

Land  &  Water  Co.,  6  Cal.  Unrep.  3  H  i  b  e  r  n  i  a  Sav.  &  L.  Soc.  v. 

25,  118  Pac.  425;  Smith  v.  Kimball,  Cochran,  141  Cal.  653,  75  Pac.  315; 

36  Kan.  474,  13  Pac.  801;  McPher-  Atchison  County  Commrs.  v.  Lips, 

son  V.  H  ousel,  13  N.  J.  Eq.    (2  69  Kan.  252,  76  Pac.  851. 

Beas.)  299.  Lien   created    by  contract   prior 

See,  also,  post,  §  317,  footnote  1.  to  mortgage,  owner  of  contract 

Creditors'  suit  to  subject  prop-  not  being  party  to  foreclosure, 

erty  to  payment  of  judgment,  lis  not   affected. — Beggs    v.    Hoffman, 

pendens  does  not  extend  to  claims  60  Wash.  495,  111  Pac.  576. 

398 


Ch.  XIV.]  PURCHASER   BOUND   BY   DECREE.  §  317 

than  his  grantor.'*  An  action  is  pending  after  default  and 
until  final  judgment  is  entered.  But  a  purchaser  with 
notice  occupies  the  same  position  as  his  grantor  in  refer- 
ence to  the  issuance  of  a  writ  of  assistance  to  the  pur- 
chaser under  the  decree.^ 

^  317.  Purchaser  bound  by  decree.  A  person  pur- 
chasing during  the  litigation,  a  notice  of  lis  pendens  being 
on  file,  is  bound  by  the  decree  in  such  suit.^  But  it  does 
hot  apply  to  one  whose  interest  subsisted  before  the  suit 
was  commenced,  and  who  might  have  been  an  original 
party.-  A  purchaser  of  mortgaged  premises  who  neglects 
to  have  his  deed  recorded  until  after  the  filing  of  the  lis 
pendens  for  the  foreclosure  of  the  mortgage  is  precluded 
from  asserting  title  under  it  as  against  the  purchaser  at 
the  foreclosure  sale.=*  The  record  of  a  chancery  suit 
wherein  a  conveyance  of  land  is  decreed  is  not  construc- 
tive notice,  binding  upon  subsequent  purchasers  from  the 
party  decreed  to  convey,  until  after  it  has  been  recorded 
in  the  county  where  the  land  is  situated.'' 

i  Abadie  v.  Lohero,  36  Cal.  390.  N.  J.  Eq.  531;  Hopkins  v.  McLaren, 

■-.Montgomery  v.  Byers,  21  Cal.  4  Cow.  (N.  Y.)  667;  Parks  v.  Jack- 

j^QY  son  ex  dem.  Hendricks,  11  Wend. 

As  to  purchaser  with  notice,  see,  (N.  Y.)  442,  25  Am.  Dec.  656;  Skeel 

ante,  §  297.  v.    Sparker,   8   Paige   Ch.    (N.   Y.) 

1  Calderwood  v.  Trevis,  23  Cal.  182;  Chapman  v.  West,  17  N.  Y. 
335;  Hurlbutt  v.  Butenop,  27  Cal.  125,  affirming  10  How.  Pr.  367; 
50;  Horn  v.  Jones,  28  Cal.  194;  L  e  i  t  c  h  v.  Wells,  48  N.  Y.  585; 
Sharp  V.  Lumley,  34  Cal.  611,  615;  Craig  v.  Ward,  1  Abb.  App.  Dec. 
Amador  Canal  &  M  i  n.  Co.  v.  (N.  Y.)  454,  3  Keyes  387,  3  Abb. 
Mitchell,  59  Cal.  168,  178;  McNa-  Pr.  N.  S.  235.  See  Noyse  v.  Craw- 
ma  ra  V.  Oakland  Building  &  L.  ford,  118  Iowa  15,  96  Am.  St.  Rep. 
Assoc,  132  Cal.  247,  249,  64  Pac.  363,  91  N.  W.  799. 
277  (applying  same  rule  to  person  In  action  of  trespass  between 
acquiring  homestead);  Zeiter  v.  grantor  and  another,  a  purchaser 
Bowman,  16  Barb.  (N.  Y.)  133;  pendente  lite  is  not  bound  by  the 
Griswold  V.  Miller,  15  Barb.  (N.Y.)  j  u  d  g  m  e  n  t.— Haile  v.  Ano,  136 
520;  Cleveland  v.  Bocrum,  23  Barb.  N.  Y.  569,  32  Am.  St.  Rep.  764,  32 
(N.   Y.)    201,   3   Abb.    Pr.   294;    af-  N.  E.   1068. 

firmed,  27  Barb.  252,  24  N.  Y.  613.  3  Ostrom  v.   McCann,   21   How. 

See,  also,  ante,  §  816,  footnote  1.  Pr.   (N.  Y.)   431. 

•2  See:   Hunt  v.  Haven,  52  N.  H.  4  R  o  s  s  e  r  v.  Bingham,  17  Ind. 

16  2;    Haughraout  v.   Murphy,   2  2  542. 

309 


CHAPTER  XV. 

PLACE  OF  TRIAL AS  DETEEMINED  BY  SUBJECT  OF  ACTION  AND 

NATURE  OF  PROCEEDINGS. 

§  318.  In  general. 

§  319.  In  any  county  when. 

§  320.  Local  and  transitory  actions — In  general. 

§  321.  Local  actions. 

§  322.  Transitory  actions. 

§  323.  Actions  affecting  real  property — In  general. 

§  324.  Illustrations  of  local  actions. 

§  325.  Action  to  declare  deed  absolute  mortgage :  Redemp- 
tion. 

§  326.  Action  to  reform  contract  for  sale  of  land. 

§  327.  Action  for  specific  performance. 

§  328.  Action  to  enforce  trust  in  land. 

§  329.  Action  to  foreclose  lien  on  land. 

§  330.  Action  for  trespass  on  land. 

§  331. To  enjoin  threatened  trespass. 

§  332. Suit  for  use  and  occupation. 

§  333.  Joinder  of  real  and  personal  actions. 

§  334.  Action  affecting  personalty. 

§  335.  Actions  on  contracts — In  general. 

§  336.  Under  statute. 

§  337.  In  California. 

§  338.  Actions  for  tort — In  general. 

§  339.  Under  statute. 

§  340.  Actions  for  penalties  or  forfeitures — In  general. 

§  341.  Actions  to  which  applicable. 

§  342.  Exceptions  to  the  rule. 

§  343.  Actions  by  and  against  persons  in  representative  capac- 
ity— In  general. 

§  344.  In  California. 

§  345.  Actions  against  public  officers. 

§  346.  Actions  against  cities,  counties  or  towns — In  general. 

§  347.  In  California. 

400 


ch.  XV.]  PLACE   OF    TRIAL IN    GENER.VL.  §  318 

§  348.  Actions  made  local  to  place  of  accrual. 

§  349.  Actions  to  be  tried  where  subject-matter  situated — In 
general. 

§  350.  What  actions  included. 

§  351.  Ancillary  and  incidental  actions. 

§  352.  Right  to  sue  in  more  than  one  county — Election. 

§  353.  Joinder  of  causes  suable  in  different  counties. 

§  354.  Laying  venue. 

§  355.  Objections  and  exceptions — In  general. 

§  356.  In  California. 

§  357.  Estoppel  and  waiver. 

§  318.  In  general.  In  California,  under  the  Code  of 
Civil  Procedure,  actions  must  be  tried  in  a  particular 
county  or  district,  having  reference:  (1)  to  the  place 
where  the  subject-matter  in  controversy  is  situated; 
(2)  to  the  place  where  the  cause  of  action  arose ;  or  (3)  to 
the  place  where  the  parties  to  the  action  reside,  according 
to  the  nature  of  the  questions  involved.  Thus,  real  ac- 
tions, or  actions  affecting  real  property,  have  a  tendency 
to  a  fixed  and  local  jurisdiction;  while  personal  actions 
are  transitory  in  their  character.^  In  the  United  States 
generally,  and  particularly  in  California,  the  distinction 
between  local  and  transitory  actions,  so  far  as  any  conse- 
quence attends  it,  depends  entirely  upon  statutory  law, 
and  does  not  coincide  with  or  depend  upon  the  distinction 
between  actions  in  rem  and  actions  in  personam.-  Where 
the  action  is  brought  in  the  wrong  county  the  remedy  is 
not  by  writ  of  prohibition,  but  by  motion  for  change  of 
venue.^    The  nature  of  an  action,  as  affecting  the  place  of 

1  As  to  local  and  transitory  bition  is  always  denied. — I^evy  v. 
actions,  see,  post,  §§320-322.  Wilson,  69  Cal.  105,  10  Pac.  272; 

2  Fresno  Nat.  Bank  v.  Superior  Murphy  v.  Superior  Court,  84  Cal. 
Court,  83  Cal.  491,  500,  24  Pac.  157.  592,   598,  24  Pac.  310;    Strouse  v. 

3  Fresno  Nat.  Bank  v.  Superior  Police  Court,  85  Cal.  49,  24  Pac. 
Court,  83  Cal.  491,  24  Pac.  157.  747;  Agassiz  v.  Superior  Court,  90 

As  to  change  of  venue  or  place  Cal.  101,  104,  27  Pac.  49;  State  v. 
of  trial,  see,  post,  chapter  XVII.  Rightor,   44   La.  Ann.   298,   10    So. 

Plain,  speedy  and  adequate  174;  State  v.  Cory,  35  Minn.  178. 
remedy   at    law,   a   writ   of   prohi-      28  N.  W.   217;    Walcott  v.  Wells, 

I  Code  PI.  and  Pr.— 26  4OI 


§§319,320  CODE   PLEADING  AND   PRACTICE.  [^t.l, 

trial,  must  be  determined  from  the  allegations  in  the  com- 
plaint and  the  nature  of  the  judgment  that  may  be  ren- 
dered on  default."*  In  a  case  of  doubt,  the  statute  should 
be  liberally  construed  in  favor  of  the  venue  in  which  the 
action  is  brought.^ 

§  319.  In  any  county  when.  In  California,  an  action 
may  be  brought  and  the  cause  tried  in  any  comity,  whether 
the  proper  county  for  the  trial  thereof  or  not,  unless  the 
defendant,  at  the  time  he  answ^ers  or  demurs,  files  an 
affidavit  of  merits,  and  demands,  in  writing,  that  the  trial 
be  had  in  the  proper  county.^ 

§  320.  Local,  and  transitory  actions — In  general.  We 
have  already  seen  that  the  nature  of  a  cause  of  action, 
and  whether  the  action  is  local  or  transitory,  is  to  be 
determined  from  the  allegations  in  the  complaint  and  the 
nature  of  the  judgment  that  may  be  rendered  on  default,^ 
not  from  any  amendment  to  the  complaint  which  the  plain- 
tiff may  intend  to  make.-  Thus,  in  an  action  to  recover 
damages  for  injuries  to  an  irrigation  canal,^  w^here  there 
is  nothing  in  the  complaint  to  indicate  that  the  defendant 
claims  any  right  to  or  interest  in  the  title  to  the  canal  or 
easement,  is  not  a  local  action,  within  the  meaning  of  the 

21  Nev.  47,  38  Am.  St.  Rep.  478,  transitory  actions,  see  note,  22 
9  L.  R.  A.  59,  24  Pac.  367;  Braud-      Am.  St.   Rep.  22. 

lacht,  Ex  parte,  2  Hill  (N.  Y.)  357,  Court  considers   not  only   the 

38  Am.  Dec.  593.  prajer  for  relief  in  the  complaint 

4  Smith  V.  Smith,  4  Cal.  Unrep.  and  answer,  but  also  the  terms 
860,  38  Pac.  43;  McFarland  V.  Mar-  ot  the  decree,  in  determining 
tin,'  144  Cal.  771,  78  Pac.  239.  whether  the  action  is,  in  effect,  a 

real  action,  quieting  title  to  land, 

or  enforcing  a  lien  thereon,  which 

must  be  brought  in  the  county  in 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.      ^^^^.^^  ^^^  ^^^^   .^   situated.- 

Proc.  2d  ed.,   §396;    Consolidated      ^^^^^^^  ^    ggj,_   ^25   Cal.   309,   57 

Supp.  1906-1913,  p.  1427.  p^^    J0j2. 

As   to   estoppel    and    waiver   by  o  Smith  v.  Smith,  4  Cal.  Unrep. 

failure  to  object,  see,  post,   §  357.      ggo^  35  pac.  43. 

1  See,  ante,  §  318,  footnote  4.  3  As  to  actions  for  tort,  see,  post. 

As  to  what  are  local  and  what      §§  338,  339. 

402 


r.  Carr  v.  Remele,  47  Wash.  380. 
133  Pac.  593. 


eh.  X^^]  LOCAL   AND    TRANSITORY   ACTIONS.  §  320 

mandatory  provision  of  the  California  constitution,  arti- 
cle VI,  section  5,^  and  may  be  commenced  in  any  county 
of  the  state  in  which  the  offending  corporation  has  its 
principal  office  and  place  of  business,  notwithstanding  the 
fact  that  the  injury  complained  of  occurred  in  another 
county;^  and  the  fact  that  the  answer  of  the  defendant 
corporation  makes  it  appear  that  the  trial  of  the  action 
will  involve  the  question  of  the  title  to  or  the  possession 
of  real  property  will  not  divest  the  superior  court  of  the 
county  in  which  the  action  is  commenced  of  jurisdiction  to 
try  the  cause.^  But  it  has  been  said  obiter, — for  the  point 
was  not  before  the  court, — that  in  such  a  case,  where  the 
defendant  is  a  natural  person  instead  of  a  corporation, 
he  may  have  the  action  transferred  to  the  county  in  which 
the  land  is  situated."^  On  the  other  hand,  an  action  to 
recover  damages  for  the  negligent  destruction  by  fire  of 
buildings  belonging  to  the  plaintiff,  is  a  purely  local 
action  ''for  injuries  to  real  property,"  wdthin  the  mean- 
ing of  the  provisions  of  the  California  Code  of  Civil  Pro- 
cedure,^ because  such  damages  could  not  be  incurred 
except  on  the  land  where  the  buildings  were  situated  ;'■ 
the  removal  of  the  buildings  from  the  land  by  tire  could 
not  render  the  action  transitory,^"  In  the  language  of 
Mr.  Chief  Justice  Marshall,  ''actions  are  deemed  transi- 
tory w^iere  the  transactions  upon  which  they  are  founded 
might  have  taken  place  anywhere,  but  are  local  when  their 
cause  is  essentially  local. "^^    But  in  the  case  of  an  action 

4  Henning's  Gen.    Laws  of  Call-  Yacht  Club  v.  Sausalito  Bay  Water 
fornia,  2d  ed.,  p.  62.  Co.,  98  Cal.  487,  33  Pac.  322. 

5  Miller  &  Lux  v.  Kern  County  «  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Land  Co.,  140  Cal.  132,  134,  73  Pac.  Proc,  2d  ed.,   §  392;    Consolidated 
836.     Sec  Miller  &  Lux  v.  Kern  Supp.   190G-1913,  p.   1422. 
County  Land  Co.,  134  Cal.  586,  66  9  Las   Animas    &    San    Joaquin 
Pac.   856.  Land  Co.  v.  Fatjo,  9  Cal.  App.  319, 

0  Id.  99  Pac.  393. 

7  Miller  &  Lux  v.  Kern  County  lo  Id.,  distinguishing  McGonigle 

Land  Co.,  140  Cal.  132,  135,  73  Pac.  v.  Atchison,  33  Kan.  726,  7  Pac. 
836,  distinguishing  Fritts  v.  Camp,      550. 

94    Cal.   393,   29   Pac.   867;    Pacific  u  Livingston  v.  Jefferson,  1 

403 


§  321  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

for  damages  for  a  trespass  upon  real  estate/-  whether 
the  action  is  local  or  transitory  depends  upon  whether  the 
trespass  is  viewed  as  relating  to  the  real  estate,  or  simply 
as  affording  a  personal  remedy  to  the  plaintiff. ^^ 

§321.   Local  ACTIONS.  Under  statutory  provisions 

in  California, — and  the  same  is  true  in  all  the  other  juris- 
dictions,— certain  actions  must  be  brought  and  tried  in 
the  county  specified  in  the  statute.  Thus,  it  is  specifically 
provided  that  all  actions  affecting  the  title  to  or  the  pos- 
session of  real  property,  must  be  brought  and  tried  in  the 
county  in  which  the  lands  are  situated,^  and  the  only 
exception  to  the  statutory  rule  is  where  the  action  is  for 
damages  to  real  property,  committed  by  a  corporation,  in 
which  case  the  action  may  be  brought  and  the  cause  tried 
in  the  coimty  in  which  the  corporation  has  its  principal 
office  and  place  of  business,  where  the  complaint  does  not 
disclose  that  the  defendant  corporation  claims  any  right 
or  interest  in  the  land ;-  and  in  certain  specified  cases  the 
action  is  to  be  brought  and  the  trial  had  in  the  county  in 
which  the  subject-matter  of  the  action  is  located,-'  or 
where  the  cause  of  action  arose,^  and  the  like.  Tliis  is 
purely  matter  of  statutory  provisions  and  interpretation. 
It  has  been  said  that  an  action  to  rescind  a  contract  for 
and  the  exchange  of  lands,  which  are  situated  in  difloicnt 
counties,  while  local,  is  no  more  local  to  the  one  county 
than  the  other,  but  should  be  brought  and  tried  in  the 

Brock.  203,  209,  Fed.  Cas.  No.  8411.  L.  R.  A.  779,  16  Atl.  651.     See  Pey- 

See  Ophir  Silver  M  i  n.  Co.  v.  ton  v.  Desmond,  63  C.  C.  A.   651, 

Superior  Court,  147  Cal.  467,  473,  129  Fed.  4. 

3  Ann.  Cas.  340,  82  Pac.  70.  i  As   to    actions    affecting    land, 

See,    also,   Westlake's    Private  see,  post,  §323. 

International  Law  (3d  ed.),  p.  213.  2  See,  ante,  §  320,  footnotes  4  et 

12  As  to  trespass   upon    real  seq. 

estate,  see,  post,  §§  330-332.  3  State   ex    rel.    Mackey    v.    Dis- 

13  See  Huntington  v.  Atrill,  146      trict  Court,  40  Mont.  359,  135  Am. 
U.  S.  657,  669,  36   L.   Ed.  1123,  13      St.  Rep.  622,  106  Pac.  1098. 

Sup.    Ct.    Rep.    224,    reversing    70  See,  also,  post,  §§  349,  350. 

Md.   191,   14   Am.   St.    Rep.   344,   2  4  See,  post,  §  329: 

404 


ell.  XV.]  TRANSITORY   ACTIONS.  §  322 

county  in  wliicli  the  land  is  situated  which  the  plaintiff 
seeks  to  recover.^ 

In  Kansas,  for  example,  under  the  provisions  of  the 
statute,^  requiring  that  specified  actions  "must"  be  and 
that  other  actions  ''may"  be  brought  in  designated  coun- 
ties, and  that  all  other  actions  must  be  brought  in  the 
county  in  which  the  defendant  resides,  or  in  which  lie 
may  be  served  with  process,  the  court,  interpreting  the 
statutory  provisions,  hold  that  the  actions  designated 
which  **may"  be  brought  in  designated  counties,  does  not 
render  them  ''local  actions."^ 

^  322.    Transitory   actions.      Transitory    actions 

may  be  brought  wherever  service  of  process  can  be  made 
upon  the  defendant.^  As  to  what  constitute  transitory 
actions,  the  same  as  to  wliat  are  local  actions,  is  purely  a 
matter  of  statutory  provision  and  interpretation.-  Some 
ilUistrations  as  to  what  are  transitory  actions  are  selected 
at  random,  without  any  effort  to  be  exhaustive.  An  action 
against  an  agent  for  moneys  had  and  received,  is  a  transi- 
tory action,  and  hence  may  be  brought  and  tried  in  any 
jurisdiction  in  whicli  the  defendant  may  be  served  ^^dth 
process.^  An  action  to  recover  damages  for  a  personal 
injury,  is  transitory,  not  local.^  An  action  for  the  breach 
of  an  executory  contract,  both  during  the  life  and  after 
the  death  of  the  promisor,  is  transitory,  and  may  be  main- 
tained against  the  administrator  of  a  deceased  promisor 
without  reference  to  where  the  contract  was  entered  into.^ 

5  Wilson  V.  Mills,  92  Wash.  105,  2  See,  ante,  §  321. 

Ann.  Gas.  1918C,  891,  158  Pac.  1008.  3  Sandoval  v.  Randolph,  11  Ariz. 

r.  Kan.    Code    Civ.    Proc,    §51;  371^    95    p^c.    119;     affirmed,    222 

Gen.  Stats.  1909,  §  5644.  ^   g   ^g^^  gg  l.  Ed.  142,  32  Sup.  Ct. 

7  Henry  v.  Missouri,  K.  &  T.  R.  ^        ^^ 

Co.,  92   Kan.  1017,   1020,  142  Pac. 

.,    ^„r,  4  Ramaswamy    v.    Hammond 

'1  Henry  v.  Missouri,  K.  &  T.  R.      Lumber  Co.,  78  Ore.  407,  152  Pac. 

Co.,  92  Kan.  1017,  1020,  142  Pac.      223. 

972,  973;    State  ex  rel.  Mackey  v.  o  McCann    v.    Pennie,    100    Cal. 

District   Court,   40   Mont.   359,   135      547,  35  Pac.  158. 

Am.  St.  Rep.  622,  106  Pac.  1098. 

405 


§322 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


A  civil  action  for  libel  is  transitory,^  and  may  be  brought 
and  tried  in  any  jurisdiction  in  which  the  libel  was  circu- 
lated, regardless  of  where  the  libel  was  written  or 
printed ;"  and  the  same  is  true  of  a  criminal  action  for 
libel,  in  the  absence  of  restrictive  legislation.^  An  injunc- 
tion to  prevent  the  closing  of  an  under-ground  railroad 
crossing,  operating  in  personam  and  not  in  rem,  is  a 
transitor\^  action.^  Proceedings  in  insolvency  against  a 
corporation,  are  transitory,  being  in  the  nature  of  a  quo 
warranto,  and  may  be  brought  and  tried  either  in  the 
county  in  which  the  plaintiff  resides,  or  in  the  county  in 
which  the  corporation  has  its  principal  office  and  place  of 
business. ^^  An  action  for  the  enforcement  of  a  trust,  and 
for  an  accounting  thereunder,  is  a  transitory  one,  irre- 
spective of  the  fact  that  the  action  will  take  effect  upon 
real  property.^ ^  So,  an  action  for  the  specific  perform- 
ance of  a  contract  to  convey  land  is  held  to  be  transitory. 


6  Root  V.  King,  4  Cow.  (N.  Y.) 
403;  Duryee  v.  Orcutt,  9  Johns. 
(N.  Y.)  248;  Woolworth  v.  Klock, 
92  App.  Div.  (N.  Y.)  142,  86  N.  Y. 
Supp.  1111. 

7  Clinton  v.  Croswell,  2  Cai. 
(N.  Y.)  245,  1  Cal.  &  C.  Cas.  398, 
2  Am.  Dec.  235;  Nicholson  v.  Loth- 
rop,  3  Johns.  (N.  Y.)  139;  Vitolo 
V.  Bee  Publishing  Co.,  66  App.  Div. 
(N.  Y.)  582,  10  N.  Y.  Ann.  Cas.  337, 
73  N.  Y.  Supp.  273;  Belo  v.  Wren, 
63  Tex.  686;  Bailey  v.  Chapman, 
15  Tex.  Civ.  App.  240,  38  S.  W. 
544. 

See,  also,  note  9  Ann.  Cas.  383. 

8  See  Baker  v.  State,  97  Ga.  452, 
25  S.  E.  341;  Com.  v.  Balding,  20 
Mass.  (3  Pick.)  304,  15  Am.  Dec. 
214;  Com.  v.  Macloon,  101  Mass.  1, 
100  Am.  Dec.  89;  Mills  v.  State,  18 
Neb.  575,  26  N.  W.  354;  State  ex 
rel.  Taubman  v.  Houston,  19  S.  D. 
644,  117  Am.  St.  Rep.  970,  9  Ann. 
Cas.   381,   104   X.   W.  451;    Belo   v. 


Wren,  63  Tex.  686;  Bailey  v.  Chap- 
man, 15  Tex.  Civ.  App.  240,  38 
S.  W.  544;  Haskell  v.  Bailey,  25 
U.  S.  App.  99,  11  C.  C.  A.  476,  63 
Fed.  873. 

9  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Wynkoop,  73  Kan.  590,  85  Pac.  595. 

10  State  ex  rel.  Parsons  Min.  Co. 
v.  McClure,  17  N.  M.  694,  Ann.  Cas. 
1915B,  1110,  47  L.  R.  A.  (N.  S.) 
744,  133  Pac.  1063  (under  Comp. 
Laws  1897,  §2950). 

iiLe  Breton  v.  Superior  Court, 
66  Cal.  27,  4  Pac.  777;  Bell  v. 
Fludd,  28  S.  C.  313,  5  S.  E.  810; 
Reese  v.  Muran,  5  Wash.  373,  31 
Pac.  1027;  State  ex  rel.  Campbell 
V.  Superior  Court,  7  Wash.  306,  34 
Pac.  1103;  State  ex  rel.  Scougale 
V.  Superior  Court,  55  Wash.  328, 
330,  133  Am.  St.  *  Rep.  1030,  104 
Pac.  607. 

Action  to  enforce  trust  on  min- 
ing claim,  the  rule  is  different,  and 
the  action  must  be  brought  in  the 


406 


ell.  XV.]        ACTIONS  AFFECTING  REALTY.  §  323 

and  need  not  be  brought  in  the  county  where  the  land  is 
situated;^-  e.  g.,  to  compel  the  conveyance  of  a  mine.^^ 
The  same  is  true  of  an  action  in  the  nature  of  a  creditor's 
bill,  brought  to  set  aside  a  conveyance  made  by  an  execu- 
tion debtor  on  the  ground  of  fraud  ;^^  and  of  an  action  for 
an  accounting  between  a  mortgagor  and  a  mortgagee  in 
possession,  the  property  mortgaged  being  situated  out  of 
the  state.  ^^ 

§  323.  Actions  affecting  real  property — In  general. 
The  California  constitution^  and  statutes  provide  that  all 
actions  for  the  recovery  of  real  property,  or  for  the  pos- 
session thereof,  or  for  an  interest  therein,  or  for  the 
determination  of  such  rights,  or  for  the  foreclosure  of 
liens  thereon,"  or  for  injuries  to  the  possession  of  or  to 
real  property  by  trespass^  or  otherwise,  or  to  quiet  the 
title  thereto,  must  be  brought  in  the  county  in  which  such 
real  property  or  a  portion  thereof  is  situated.*  In  all  the 
other  jurisdictions  there  are  similar  statutes.  In  deter- 
mining whether  an  action  is,  in  effect,  a  real  action  and 
local,  which  must  be  brought  in  the  county  in  which  the 
land  or  some  portion  thereof  is  situated,  the  court  vdW 
consider,  not  only  the  complaint^  and  the  answer,  but  also 
the  terms  of  the  decree  to  be  entered.^    It  is  to  be  noted, 

county  in  which  the  mining  claim  2  See,  post,   §  329.     See  Staaclte 

is  situated.— McFarland  v.  Martin,  v.  Bell,  125  Cal.  309,  57  Pac.  1012. 

144  Cal.  771,  775,  78  Pac.  239.  3  See,  post,  §§  330-332. 

12  Morgan  v.  Bell,  3  Wash.  554,  4  See  Kerr's  Cyc.  Cal.  Code  Civ. 
16  L.  R.  A.  614,  28  Pac.  925.  Proc.  2d  ed.,  p.  392;   Consolidated 

13  Wood    V.    Thompson,    5    Cal.  Supp.  1906-1913,  p.  1422. 

App.  248,  90  Pac.  39.  •"»  See,  ante,  §  318.  footnote  4. 

14  Beach  V.  Hodgdon.  66  Cal.187,  c  Staacke  v.  Bell,  125  Cal.  309, 
5  Pac.  77;  Woodbury  v.  Nevada  314,  57  Pac.  1012.  See  Fritts  v. 
Southern  R.  Co.,  120  Cal.  463,  466,  Camp,  94  Cal.  393,  29  Pac.  867; 
52  Pac.  730.  Pacific    Yacht    Club    v.    Sausalito 

15  Peninsular  Trading  &  Fishing  Bay  Water  Co.,  98  Cal.  4S7,  489. 
Co.  v.  Pacific  Steam  Whaling  Co.,  33  Pac.  322;  Miller  &  Lux  v.  Kern 
123  Cal.  689,  697.  56  Pac.  604.  County  Land  Co.,  140  Cal.  132,  136. 

1  Cal.    Const.    1879.   art.   VI,    §  5.      73  Bac.  836. 
Ilenning's  Gen.  Laws,  2d  ed.,  p.  62.  See,  also,  ante,  §  318,  footnote  4. 

407 


§324 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  T, 


however,  that  the  California  constitution  does  not  pro- 
hibit the  trial  elsewhere  if  the  action  is  commenced  in  the 
proper  county,  notwithstanding  the  provisions  of  section 
three  hundred  and  ninety-two  of  the  Code  of  Civil  Pro- 
cedure.'^ 


<^324. 


Illustrations  of  local  actions.    Among 


the  actions  held  to  be  local  actions  by  reason  of  their 
affecting  the  title  to  or  interests  in  or  the  possession  of 
real  property,  are  the  following :  An  action  by  the  owners 
of  an  undivided  one-half  of  real  property  to  have  an 
administrator's  sale  of  and  deed  to  the  other  undivided 
one-half  set  aside  as  fraudulent,  and  the  title  reinvested 
in  the  former  owners  ;^  action  for  injuries  to  land,^  or  to 


7  See  Hancock  v.  Burton,  61  Cal. 
70;  Warner  v.  Warner,  100  Cal.  11, 
15,  34  Pac.  523;  Duffy  v.  Duffy, 
104  Cal.  602,  38  Pac.  443;  Staacke 
V.  Bell,  125  Cal.  309,  314,  &?  Pac. 
1012. 

1  Sloss  V.  De  Toro,  77  Cal.  129, 
19  Pac.  233. 

Distinguished  in  Cochrane  v. 
McDonald,  4  Cof.  Prob.  (Cal.)  535, 
544,  refusing  change  of  venue  of 
action  based  on  collusion  and 
fraud  to  county  in  which  land  sit- 
uated. 

Action  to  set  aside  deficiency 
judgment  and  levy  on  land  is  prop- 
erly brought  in  the  county  where 
the  land  lies. — Herd  v.  Tuohy,  133 
Cal.  55,  60,  65  Pac.  139. 

2  McLeod  v.  Ellis,  2  Wash.  117, 
26  Pac.  76.  See  Lower  Kings 
River  Water  Ditch  Co.  v.  Kings 
River  &  Fresno  Canal  Co.,  60  Cal. 
408;  People's  Ditch  Co.  v.  Kings 
River  &  Fresno  Canal  Co.  (Cal.),  2 
Pac.  45;  Miller  &  Lux. v.  Kern 
County  Land  Co.,  6Cal.Unrep.684, 

65  Pac.  312;  affirmed,  134  Cal.  586, 

66  Pac.  856;    Las  Animas   &   San 


Joaquin  Land  Co.  v.  Fatjo,  9  Cal. 
App.  318,  321,  99  Pac.  393,  395; 
Perry  v.  Seaboard  Air  Line  R.  Co., 
153  N.  C.  117,  68  S.  E.  1060. 

Destruction  of  building  by  fire 
an  injury  to  real  property  and  ac- 
tion therefor  must  be  brought  in 
the  county  where  the  land  is  situ- 
ated.— Las  Animas  &  San  Joaquin 
Land  Co.  v.  Fatjo,  9  Cal.  App.  318, 
99  Pac.  393. 

Corporation  defendant  sued  in 
county  where  it  had  its  principal 
office  and  place  of  business,  alleg- 
ing injury  to  land,  refusal  to 
change  venue  to  county  in  which 
land  injured  situated,  held  to  be 
error  in  Miller  &  Lux  v.  Kern 
County  Land  Co.,  6  Cal.  Unrep. 
684,  65  Pac.  312;  affirmed,  134  Cal. 
586,  66  Pac.  856. 

Diversion'of  water  in  violation 
of  statute,  where  it  involves  in- 
jury to  real  property,  is  local  to 
the  county  in  which  the  land  is 
situated. — McClatchy  v.  Laguna 
Lands,  Limited,  32  Cal.  App.  718, 
164  Pac.  41. 

Flooding  land,  action  for  is  local. 
— Morris  v.  Missouri  Pac.  R.  Co., 


408 


Ch.  XV.]  LOCAL    ACTIONS WHAT    ARE.  §  324 

restrain  threatened  injuries  thereto  f  action  for  reforma- 
tion of  contract  for  sale  and  conveyance  of  land,*  though 
the  authorities  are  divided  as  to  an  action  for  the  specific 
performance  of  such  a  contract;^  action  on  contract  for 
the  removal  of  standing  timber  f  action  to  abate  a  nuis- 
ance on  land  ;'^  action  to  condemn  lands,  under  the  power 
of  eminent  domain,  for  the  use  of  a  railroad  or  other 
public  purpose,  although  defendant  resides  elsewhere;^ 
action  to  dissolve  a  mining  copartnership,  where  the  de- 
termination of  the  respective  estates  or  interests  of  the 
copartners  in  the  mining  claim  is  involved  in  the  action;** 
action  to  determine  the  plaintiff's  right  to  the  use  of  the 
water  of  a  spring  on  defendant's  land,  and  to  maintain 
pipes  to  conduct  such  water  in  the  enjoyment  of  its  use  ;^'^ 
action  to  enforce  trust  in  land  and  to  compel  a  conveyance 
thereof,  held  local  by  some  authorities  and  transitory  by 
others ;^^  action  to  foreclose  vendor's  lien  on  real  prop- 
erty ;^2  action  to  have  deed  absolute  on  its  face  declared 
a  mortgage,  and  to  redeem  therefrom  ;^^  action  to  quiet 

78  Tex.  17,  22  Am.  St.  Rep.  17,  9  Bloomfield  Gravel  Min.  Co.,  66  Cal. 

L.  R.  A.  349,  14  S.  W.  228.  343,  5  Pac.  507. 

3  Drinkhouse  v.  Spring  Valley  s  California  So.  R.  Co.  v.  South- 
Water  Works,  80  Cal.  308,  22  Pac.  ern  Pac.  R.  Co.,  65  Cal.  409,  4  Pac. 
252;  Last  Chance  Water  Ditch  Co.  388;  Santa  Rosa,  City  of,  v.  Foun- 
V.  Emigrant  Ditch  Co.,  129  Cal.  tain  Water  Co.,  138  Cal.  579,  71 
277,  61  Pac.  960.    See  Cox  v.  Rail-  Pac.  1123,  1136. 

way  Co.,  55  Ark.  454,  459,  18  S.  W.  9  Clark  v.  Brown,  83  Cal.  181,  23 

630.  Pac.  289. 

As  to  trespass   upon    real    prop-  lo  Pacific   Yacht  Club  v.   Sausa- 

erty  and   injunction  to  prevent  a  lito  Bay  Water  Co.,  98  Cal.  487,  33 

threatened     trespass,     see,     post,  Pac.  322. 

§§330,  331.  n  As  to  action  to   enforce  trust 

4  As  to  action  to  reform  con-  in  and  compel  conveyance  of  land, 
tract   for  sale   of  land,   see,    post,  see,  post,  §  328. 

§326.  i-'Urton  v.  Woolsey,  87  Cal.  38, 

r>  As  to  action  to  compel  specific  25  Pac.  154;   Southern  Pac.  R.  Co. 

performance    of    contract    to    sell  v.  Pixley,  103  Cal.  118,  37  Pac.  194. 

land,  see,  post,  §  327.  I't  As  to  action  to  have  deed  de- 

•■>  Seymour     v.     La     Furgey,     47  dared  a  mortgage  and  to  redeem 

Wash.  450,  92  Pac.  267.  therefrom,   or   to   redeem    from    a 

7  Marysville,    City    of,    v.    North  mortgage,  see,  post,  §  325. 

409 


U24 


CODE   PLEADING    AND    PRACTICE. 


[Ft.  I. 


title  to  real  estate  ;^^  action  to  set  aside  a  deed  by  a  hus- 
band to  his  wife  as  voluntary  and  in  fraud  of  creditors, 
is  properly  brought  and  tried  in  the  county  in  which  the 
land  is  situated,  although  the  wife  showed  that  the  consid- 
eration was  the  conveyance  by  her  of  lands  situated  in 
another  county,  the  court  having  jurisdiction  to  determine 
whether  the  conveyance  was  in  fraud  of  creditors  ;^^  but 
it  has  been  said  that  an  action  to  set  aside  a  decree  pro- 
cured by  false  testimony  and  concealment  of  facts,  is 
properly  brought  and  tried  in  the  county  in  which  the 
decree  was  thus  procured,  notwithstanding  the  fact  that 
the  land  affected  by  such  decree  is  located  in  another 
county,'^  under  the  Utah  constitution^^  requiring  "all 
civil  and  criminal  business  arising  in  any  county  to  be 
tried  in  such  county, unless  a  change  of  venue  be  taken.'"'' 
And  it  is  held  that  an  action  to  foreclose  a  logger's  lien  is 
properly  brought  in  the  county  where  the  logs  were  cut 
and  the  lien  notice  filed,  regardless  of  the  fact  that  the 
logs  are  in  another  county.^^ 

of  Seattle,  16  Wash.  399,  47  Pac. 


14  Fritts  V.  Camp,  94  Cal.  393,  29 
Pac.  867;  Pacific  Yacht  Club  v. 
Sausalito  Bay  Water  Co.,  98  Cal. 
487,  33  Pac.  322;  Grangers'  Bank 
V.  Superior  Court,  4  Cal.  Unrep. 
130,  33  Pac.  1096. 

Action  to  cancel  contract  of  pur- 
chase for  nonpayment  must  be 
commenced  in  county  where  land 
situated. — Robinson  v.  Williams, 
12  Cal.  App.  519,  107  Pac.  706. 

Action  to  quiet  title  to  lands  in 
A  county  against  persons  claiming 
a  title  or  interest  therein,  and 
also  in  B  county  against  persons 
claiming  no  title  or  interest  in  the 
lands  in  A  county,  court  is  without 
jurisdiction  as  to  the  lands  in  B 
county. — Jones  v.  Redemption  & 
Investment  Co.,  79  Kan.  477,  99 
Pac.  1129. 

15  Carkeek  v.  Boston  Nat.  Bank 


16  Mosby  V.  Gisbom,  17  Utah 
257,  54  Pac.  121. 

17  Utah  Const.,  art.  VIII,  §  5. 

18  "Civil  business,"  as  used  in 
the  constitution,  means  such  civil 
business  as  amounts  to  a  cause  of 
action,  as  the  law  defines  a  cause 
of  action.  "When  Gisborn's  false 
representations,  his  concealment, 
and  his  false  testimony  resulted  in 
preventing  Mosby's  title  from 
being  set  up,  and  the  evidence  that 
would  have  established  it,  his 
right  of  action  arose,  and,  the  de- 
cree being  rendered  in  Salt  Lake 
County,  Mosby's  right  of  action 
must  have  arisen  in  that  county." 
—Mosby  v.  Gisborn,  17  Utah  257, 
54  Pac.  121. 

I'j  Overbeck  v.  Calligan,  6  Wash. 
342,  33  Pac.  825. 


410 


ell.  XV.]  LOCAL   ACTIONS — WPIAT    ARE.  §  325 

§  325.  Action  to  declaee  deed  absolute  mortgage  : 

Redemption.  An  action  to  have  a  deed  absolute  on  its 
face  adjudged  and  declared  to  be  a  mortgage,  to  be  per- 
mitted to  redeem,  and  to  be  let  into  possession,  is  a  local 
action  which  must  be  commenced  in  the  county  in  which 
the  land  affected  is  situated.^  Thus,  although  a  corpora- 
tion is  usually  to  be  sued  in  the  county  in  which  it  has  its 
principal  office  and  place  of  business,  yet  in  an  action 
against  a  corporation  to  have  a  deed  absolute  declared  a 
mortgage,  and  to  be  permitted  to  redeem  from  the  same, 
the  action  being  to  determine  a  right  or  interest  in  real 
property,  is  properly  brought  in  the  county  in  which  the 
land  is  situated,  although  that  county  is  not  the  one  in 
which  the  principal  office  and  place  of  business  of  the 
corporation  is  located. - 

Redemption  from  mortgage  being  the  object  of  the 
action,  the  rule  is  different,  and  being  transitory  the  ac- 
tion must  be  brought  in  the  county  in  which  the  defendant 
resides.^  The  reason  is  because  the  action  can  not  be  said 
to  affect  the  real  property,  because  it  acts  purely  in 
personam,  the  object  of  the  action  being  to  compel  the 
mortgagee  to  accept  a  certain  sum  of  money,  the  effect  of 
which  is  to  release  the  mortgage-claim  upon  the  property,^ 
and  it  is  the  duty  of  the  mortgagor  wishing  to  redeem  to 
seek  out  the  mortgagee,  or  the  party  holding  the  lien  on 
the  land,  in  the  forum  where  jurisdiction  in  personam  can 
be  obtaine<l  over  the  mortgagee  or  such  party  holding  the 
lien,  without  reference  to  the  situs  of  the  land  mortgaged.^ 

1  Smith  V.  Smith,  4  Cal.  Unrep.  4  Boston  &  Providence  R.  Co.  v. 

860,  38  Pac.  43;  Smith  v.  Smith,  88  New  York  &  N.  E.  R.  Co.,  12  R.  I. 

Cal.  572,  26  Pac.  356.  220. 

:i  Baiter  v.  Fireman's  Fund  Ins.  ")  Smith  v.  Larrabee,  58  Me.  361; 

Co.,  73  Cal.  182,  14  Pac.  686.  Kanawha  Coal  Co.  v.  Kanawha  & 

o  Smith  V.  Larrabee,  58  Me.  361;  Ohio  Coal  Co.,  7  Blatchf.  391,  Fed. 

State    ex    rel.    Schatz    v.    District  Cas.  No.  7606. 
Court,  40  Mont.  173,  105  Pac.  554. 

411 


§§  326, 327  CODE  pleading  and  practice.  [Pt.  I, 

^  326.    Action  to  reform  contract  for  sale  of 

LAND.  An  action  to  procure  tlie  reformation  of  a  contract 
for  the  sale  and  conveyance  of  real  estate,  involving  the 
title  to  such  real  estate,  is  local  in  its  nature,  and  must  be 
brought  in  the  county  in  which  the  land  is  situated  ;^  but 
an  action  upon  an  alternative  contract  to  pay  a  specified 
sum  of  money  when  the  title  to  the  land  is  cleared,  and  if 
the  title  is  not  cleared  to  reconvey,  operating  in  personam, 
is  not  local,  but  is  to  be  brought  and  tried  in  the  county 
in  which  the  defendant  resides,  under  section  three  hun- 
dred and  ninety-five  of  the  California  Code  of  Civil  Pro- 
cedure,2  because  in  such  actions  the  decree  of  the  court 
acting  in  personam,  where  the  court  has  jurisdiction  of 
the  person  of  the  defendant  the  decree  may  run  against 
him,  notwithstanding  the  fact  that  it  may  collaterally  act 
in  rem,  and  affect  property  outside  of  the  jurisdiction  of 
•the  court.^ 

Mining  claim  being  real  estate  as  to  the  venue  of  all 
actions  involving  the  title  to  or  possession  of  the  same,  an 
action  to  set  aside  a  contract  for  the  sale  of  a  mining  claim 
must  be  brought  in  the  county  in  which  such  mining  claim 
is  situated  ;^  and  the  same  is  true  of  an  action  to  enforce 
a  trust  in  a  mining  claim  and  compel  its  conveyance.^ 

<^  327.  Action  for  specific  performance.  An  ac- 
tion by  a  purchaser  of  real  property  for  a  specific  per- 
formance of  the  contract  of  sale  and  to  compel  a  convey- 
ance of  the  land,  under  an  allegation  that  the  purchase 
price  has  been  paid,  pursuant  to  agreement,  from  the 
proceeds  of  the  sale  of  fruits  and  lands  made  by  the 

1  Franklin  V.  Dutton,  79  Cal.  605,  Pac.  26;  Stuphen  v.  Fowler,  9 
21  Pac.  964.  Paige  Ch.  (N.  Y.)  280. 

2  White  V.  Adler,  5  Cal.  Unrep.  3  Peninsular  Trading  &  Fishing 
215,  42  Pac.  1070.     See  Le  Breton  Co.  v.  Pacific  Steam  Whaling  Co., 
V.    Superior   Court,    66    Cal.    27,    4  123  Cal.  689,  697,  56  Pac.  604. 
Pac.  777;   Smith  v.  Smith,  88  Cal.  4  Watts  v.  White,  13  Cal.  321,  13 
572,  26  Pac.  356;    Smith  v.  Davis,  Morr.  Min.  Rep.  11. 

90  Cal.  25,  25  Am.  St.  Rep.  92,  27  5  See,  post,  §  328. 

412 


Ch.  XV.]  LOCAL   ACTIONS — WHAT    ARE.  §  327 

defendant,  for  which  proceeds  an  accounting:  is  asked,  to- 
gether with  a  judgment  for  a  surplus  alleged,  has  been 
held  to  be,  in  its  nature,  an  action  to  determine  a  right  or 
interest  in  real  property,  is  local  under  the  California 
Code  of  Civil  Procedure,^  and,  wherever  commenced,  must 
be  tried,  upon  demand  of  the  defendant,  in  the  county  in 
which  the  land  is  situated.^  While  it  is  true  that  the  join- 
ing of  a  personal  with  a  real  action  makes  the  action 
transitory  in  character,^  the  accoimting  for  profits  asked 
in  such  a  case  is  only  an  incident  of  the  transaction,  going 
merely  to  establish  whether  the  purchase  price  has  been 
paid,  and  a  right  to  the  relief  sought,  and  does  not  change 
the  nature  of  the  action.''  The  reason  for  the  rule  is  that 
in  an  action  for  specific  performance  of  such  a  contract, 
when  the  matter  in  dispute  is  the  payment  or  nonpayment 
of  the  purchase  price,  an  accounting  may  be  necessary, 
and  if  necessary  will  be  ordered,  such  being  clearly  within 
the  powder  of  the  court  under  our  system  of  judicature,  in 
which  the  legal  and  the  equitable  functions  are  exercised 
by  one  tribunal.^ 

In  the  absence  of  statutory  provision  to  the  contrary, 
an  action  to  compel  the  specific  performance  of  a  simple 
contract  to  convey  real  estate,  the  element  of  trust*''  not 
entering  into  the  cause,  is  personal  in  its  nature,  is  transi- 
tory, and  must  be  brought  and  tried  in  the  county  in  which 
the  defendant  resides.'^  The  general  rule  of  law  being 
that  a  court  of  equity  may  decree  the  specific  performance 
of  a  contract  for  the  sale  and  conveyance  of  lands  situated 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  v.  Kern  County  Land  Co.,  150  Cal. 
Proc,  2d  ed.,  §392,  subd.  1;   Con-      466,  472,  89  Pac.  120. 

solidated  Supp.  1906-1913,  p.  1422.  5  Id. 

2  Grocers'  Fruit  Growing  Union  c  As  to  enforcing  a  trust  in  real 
V.  Kern  County  Land  Co.,  150  Cal.      property,  see,  post.  §  328. 

466,    89    Pac.    120,    distinguishing  7  Wood  v.  Thompson,  5  Cal.  App. 

Smith   V.    Smith,    88    Cal.    572,    26  247,  90  Pac.  38;  Close  v.  Wheaton, 

Pac.  356.     See  Bush  v.  Treadwell,  65  Kan.  830,  70  Pac.  891;   Horner 

11  Abb.  Pr.  N.  S.  (N.  Y.)  27.  v.  Ellis,  75  Kan.  675,  121  Am.  St. 

3  See,  post,  §  333.  Rep.  446,  90  Pac.  275. 

4  Grocers'  Fruit  Growing  Union 

413 


§328 


CODE   PLEADING   AND    PRACTICE. 


[Pt.  I, 


in  another  county  or  state,  where  the  defendant  has  been 
duly  served  with  process  and  the  court  has  acquired  juris- 
diction of  his  person  ;-  it  being  well  settled  that  a  court  of 
equity  may  exercise  jurisdiction  incidentally  affecting 
real  property  situated  in  another  state,-* 

§  328.  Action  to  enforce  teust  in  land.  An  ac- 
tion to  enforce  a  trust  in  lands  and  to  compel  a  convey- 
ance thereof,  being  an  action  affecting  the  title  to  or  an 
interest  in  real  property,  is  a  local  action  and  must  be 
brought  and  tried  in  the  county  in  which  the  real  prop- 
erty is  situated  ;^  but  an  action  to  remove  a  trustee  of  real 
property  is  not  a  local  action.^  A  mining  claim  being  real 
estate  as  to  the  venue  of  an  action  involving  the  title  to 


8  Silver  Camp  Min.  Co.  v.  Dick- 
ert,  31  Mont.  488,  3  Ann.  Cas.  1000, 
67  L.  R.  A.  940,  78  Pac.  967;  Gar- 
trell  V.  Stafford,  12  Neb.  545,  41 
Am.  Rep.  767,  11  N.  W.  732;  New- 
ton V.  Bronson,  13  N.  Y.  587,  67 
Am.  Dec.  89;  Gardner  v.  Ogden,  22 
N.  Y.  327,  78  Am.  Dec.  192;  Bald- 
win V.  Talmadge,  39  N.  Y.  Super. 
Ct.  Rep.  (7  Jones  &  S.)  400,  409; 
Rochester  &  K.  F.  Land  Co.  v. 
Roe,  8  App.  Div.  (N.  Y.)  360,  4 
N.  Y.  Supp.  799;  Cleveland  v.  Bur- 
rill,  25  Barb.  (N.  Y.)  532  (vendee 
compelled  to  purchase  land  situ- 
ated in  another  state) ;  Myers  v. 
De  Mier,  4  Daly  (N.  Y.,  343,  af- 
firmed, 52  N.  Y.  547;  Burnley  v. 
Stevenson,  24  Ohio  St.  474,  15  Am. 
Rep.  621;  Johnson  v.  Kimbro,  40 
Tenn.  (3  Head)  557,  75  Am.  Dec. 
781. 

'J  Idaho  Gold  Min.  Co.  v.  Win- 
chell,  6  Idaho  729,  96  Am.  St.  Rep. 
290,  59  Pac.  533;  Campbell  v.  Rit- 
ter  Lumber  Co.  (W.  M.),  140  Ky. 
315,  140  Am.  St.  Rep.  385,  131  S.  W. 
20;  Schmaltz  v.  York  Mfg.- Co.,  204 
Pa.  St.  1,  93  Am.  St.  Rep.  782,  59 
L.  R.  A.  907,  53  Atl.  522;  Lehigh  & 


N.  E.  R.  Co.  V.  Hanhauser,  222  Pa. 
St.  252,  128  Am.  St.  Rep,  804,  22 
L.  R,  A,  (N.  S.)  947,  70  Atl.  1089; 
Newman  v.  Shreve,  229  Pa.  St. 
215,  78  Atl.  79;  Dickson  v.  Loehr, 
126  Wis.  641,  4  L,  R.  A,  (N.  S.) 
986,  106  N.  W.  793. 

Injunction  to  prevent  trespass 
in  another  state, — e.  g.,  dredging 
a  gravel  bar, — will  not  lie,  al- 
though both  parties  reside  in  the 
jurisdiction  of  the  court. — Colum- 
bia National  Sand  Dredging  Co.  v. 
Morton,  28  App.  D.  C.  307,  8  Ann. 
Cas,  511,  7  L.  R.  A.  (N.  S.)  123. 

1  Greene  Cattle  Co.  v.  Hereford, 
11  Ariz.  403,  94  Pac.  1127,  distin- 
guishing Butterfield  v.  Nogales 
Copper  Co.,  9  Ariz.  212,  80  Pac. 
345;  Booker  v.  Atkin,  140  Cal.  471, 
74  Pac.  11;  McFarland  v.  Martin, 
144  Cal.  771,  78  Pac.  239. 

Executor's  action  to  enforce 
trust  in  realty,  in  which  action  the 
sole  relief  sought  is  to  avoid  a 
deed  wrongfully  and  fraudulently 
obtained  is  local. — Booker  v.  Ait- 
ken,  140  Cal.  471,  74  Pac.  11. 

2  Golden  Cross  Min.  &  Mill.  Co. 
V.  Spiers,  115  Cal.  247,  47  Pac.  108. 


414 


ell.  XV.]  LOCAL    ACTIONS WHAT    ARE.  §  o29 

or  the  possession  of  the  same,"^  an  action  in  which  the 
plaintiff,  by  his  complaint  and  probative  facts  stated 
therein,  seeks  to  have  the  court  adjudge  a  trust  in  a 
mining  claim  and  to  compel  a  conversance  thereof,  the 
action  involves  the  title  to  real  property  and  must  !)(' 
brought  and  tried  in  the  county  in  which  the  mining  claim 
is  situated;^  but  where  real  and  personal  property  are 
involved,  an  accounting  is  sought,  and  a  personal  judg- 
ment demanded,  the  rule  is  otherwise,  and  the  suit  must 
be  brought  and  the  trial  had  in  the  county  in  which  the 
defendant  resides."^ 

§  329.  Action  to  fokeclose  lien  on  land.  An  ac- 
tion to  foreclose  a  lien  on  land, — e.  g.,  a  mortgage, — is 
within  the  provision  of  the  California  constitution  and 
Code  of  Civil  Procedure^  required  to  be  commenced  in 
the  county  in  which  the  lands  mortgaged  are  situated;- 
and  if  the  action  is  commenced  and  tried  in  any  other 
county,  any  judgment  rendered  therein  will  be  void  for 
want  of  jurisdiction  in  the  court  over  the  subject-matter 
of  the  action.^  But  this  rule  does  not  apply  in  an  action 
by  a  creditor  to  have  a  mortgage  set  aside  as  fraudulent 
as  to  creditors,  which  suit  may  be  brought  in  the  county 
of  the  residence  of  the  defendant.^ 

In  case  new  county  created  pending  an  action  to  fore- 
close a  lien  on  land,  the  land  subject  to  the  lien  being 
included  in  the  new  county,  this  fact  does  not  divest  the 
court  in  which  the  action  was  brought,  and  which  court 

3  See,  ante,  §  326,  footnote  4.  Co.  v.  Kauffman,  108  Cal.  214,  41 

4McFarland  v.  Martin,  144  Cal.      P^c.  467;  Mack  v.  Austin,  67  Kan. 

771,  78  Pac.  239.  ^^'  ^^  ^^^-  ^^^• 

As    to    action    to    foreclose    log- 
r.  Smith  v.  Smith,  88  Cal.  572,  26      „     .      ,.  „     ^  ^     „^,„     ,.,.,,     f^^. 

ger's    lien,    see,    ante,    §  324,    loot- 
Pac.    356;    Booker  v.    Aitken,    140  .     ^g 

cal.  371,  372,  74  Pac.  11.  '  ^  ^^^^^,^  ^    ^^^^^   ^^,  ^al.   288. 

1  See,  ante,  §  323.  292,  43  Am.  St.  Rep.  100,  38  Pac. 

2  Rogers  v.   Cady,   104   Cal.   288,      81. 

292,  43  Am.  St.   Rep.  100,   104,  38  i  Woodbury    v.    Nevada    So.    R. 

Pac.    81;    Security   Loan    &    Trust      Co.,  120  Cal.  463,  52  Pac.  730. 

415 


§330 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I, 


had  jurisdiction  of  the  subject-matter  of  the  action  when 
the  foreclosure  proceedings  were  instituted,  and  the 
action  must  be  there  tried,  notwithstanding  the  fact  tliat 
at  the  time  of  the  trial,  by  reason  of  the  division  of  the 
county,  the  land  to  be  affected  lies  in  another  county.^ 


§330. 


Action  for  trespass  on  land.    By  the  doc- 


trine of  the  English  common  law,  actions  for  trespass 
upon  real  property  are  local  actions;^  and  this  doctrine 
has  been  generally  adopted  in  the  various  jurisdictions 
in  this  country,  requiring  such  actions  to  be  instituted 
and  prosecuted  in  the  county  in  which  the  land  is  situated.^ 


5Tolmaii  V.  Smith,  85  Cal.  280, 
24  Pac.  743;  Security  Loan  & 
Trust  Co.  V.  Kauffman,  108  Cal. 
214,  41  Pac.  467. 

1  See  Doulson  v.  Matthews,  4 
T.  R.  503,  100  Eng.  Repr.  1143. 

2  ALA. — Howard  v.  Ingersoll,  17 
Ala.  780;  reversed  on  another 
point,  54  U.  S.  (13  How.)  381,  13 
L.  Ed.  189;  Howard  v.  Ingersoll, 
23  Ala.  673.  CAL.— Ophir  Silver 
Min.  Co.  V.  Superior  Court,  147 
Cal.  467,  3  Ann.  Gas.  340,  82  Pac. 
70.  IND. — Du  Breuil  v.  Pennsyl- 
vania R.  Co.,  130  Ind.  137,  29  N.  E. 
909.  KAN. — Brown  v.  Irwin,  47 
Kan.  50,  27  Pac.  184.  NEB.— 
Jacobson  v.  Lynn,  54  Neb.  794,  75 
N.  W.  243.  N.  M.— Jemez  Land  Co. 
v.  Garcia,  15  N.  M.  316,  107  Pac. 
683.  N.  Y. — American  Union  Tel. 
Co.  V.  Middleton,  80  N.  Y.  408; 
Cragin  v.  Lovell,  88  N.  Y.  258,  2 
N.  Y.  Civ.  Proc.  Rep.  (Browne) 
128;  Sprague  Nat.  Bank  v.  Erie  R. 
Co.,  40  App.  Div.  (N.  Y.)  69,  57 
N.  Y.  Supp.  844;  Watts  v.  Kinney, 
6  Hill  (N.  Y.)  82,  affirming  23 
Wend.  484;  Genet  v.  Delaware  & 
H.  Canal  Co.,  56  Hun  (N.  Y.)  640, 
8  N.  Y,  Supp.  822.     OHIO— Pitts- 


burgh, C.  C.  &  St.  L.  R.  Co.  V. 
Jackson,  83  Ohio  St.  18,  21  Ann. 
Cas.  1313,  93  N.  E.  260.  TEX.— 
Morris  v.  Missouri  Pac.  R.  Co.,  78 
Tex.  17,  22  Am.  St.  Rep.  17,  9 
L.  R.  A.  349,  14  S.  W.  228;  Mis- 
souri Pac.  R.  Co.  V.  Cullers,  81 
Tex.  382,  13  L.  R.  A.  542,  17  S.  W. 
19.  WASH.— Olympia  Min.  &  Mill. 
Co.  V.  Kerns,  64  Wash.  548,  117 
Pac.  260.  WIS.— Bettys  v.  Mil- 
waukee &  St.  P.  R.  Co.,  37  Wis. 
323.  FED. — Northern  Indiana  R. 
Co.  V.  Michigan  Cent.  R.  Co.,  56 
U.  S.  (15  How.)  233,  14  L.  Ed. 
674;  Ellenwood  v.  Marietta  Chair 
Co.,  158  U.  S.  105,  39  L.  Ed.  913, 
15  Sup.  Ct.  Rep.  771;  Livingston 
V.  Jefferson,  1  Brock.  203,  Fed. 
Cas.  No.  8411. 

See,  also,  notes  3  Ann.  Cas.  344, 
26  L.  R.  A.  (N.  S.)  938-940. 

Under  Oklahoma  Organic  Act 
(Act  of  Congress  May  2,  1890,  ch. 
182,  §  10,  7  Fed.  Stats.  Ann.,  1st 
ed.,  p.  240),  actions  for  damages 
for  trespass  on  land  required  to  be 
brought  in  the  county  in  which  the 
defendant  resides.— Burke  v.  Mal- 
aby,  14  Okla.  650,  78  Pac.  105; 
Mouldin  v.  Rice,  19  Okla.  589,  91 
Pac.  1032. 


416 


Ch,  XV.]  IjOCAL.   ACTIONS — WHAT   ARE.  §§331,332 

Thus,  an  action  alleging  trespass  and  cutting  timber, 
praying  a  judgment  for  damages  and  an  injunction 
against  defendant  interfering  with  the  plaintiff  touching 
such  land  by  cutting  trees  or  claiming  any  right  or  title 
or  interest  in  the  land,  is  a  purely  local  action  f  but  it  is 
said  that  an  action  simply  to  recover  damages  for  unlaw- 
fully entering  upon  land  within  the  state  and  destroying 
growing  crops  thereon,"*  or  felling  timber,^  is  transitory, 
and  may  be  brought  in  any  county  in  which  the  defendant 
resides  or  may  be  served  with  process.^ 

<§>  331. To   ENJOIN   THREATENED  TEESPASS.      An 

action  to  enjoin  a  threatened  trespass  upon  land,  is  like- 
wise a  local  action,  and  must  be  brought  in  the  county  in 
which  the  land  is  located.^  Thus,  a  mining  claim  being 
real  estate  as  to  the  venue  of  all  actions  involving  the  title 
to  or  possession  of  the  same,^  an  action  to  enjoin  a  threat- 
ened subterranean  trespass  thereon  by  mining  upon  the 
(lip  of  a  quartz  ledge,  upon  land  in  the  possession  of  the 
defendant,  and  to  recover  the  value  of  minerals  thus  re- 
moved from  such  ledge,  where  a  reasonable  construction 
of  the  latter  element  in  the  action  involves  the  determina- 
tion of  the  right  in  and  to  the  realty  in  question,  is  a  local 
action  which  must  be  brought  and  prosecuted  in  the 
county  in  which  the  mining  claim  is  located.* 

<^  332. Suit  for  use  and  occupation.    The 

general  doctrine  is  that  in  case  of  a  trespass  upon  land 
the  owner  thereof  may  waive  the  tort  and  bring  an  action 
for  use  and  occupation.  An  action  for  use  and  occupation 
of  land,  the  judgment  operating  in  personam,  is  a  transi- 

3  Jemez  Land  Co.  v.  Garcia,  15  i  Ophir   Silver   Min.   Co.   v.   Su- 
N  M   316,  107  Pac.  683.                           perior  Court,  147  Cal.  467,  3  Ann. 

4  Powell  V.Cheshire.  70  Ga.  357,      Cas.  340,  82  Pac   70 

,„„    ^  ,r     J  ■-  See,    ante,    §  326,    footnotes    4 

48  Am.  Rep.  572;  Duncan  v.  Yordy,  _,  .    ' 

and  5. 
27  Kan.  348.  3  q^^j^Jj,    giiyej.    ^^^    q^    y    g^. 

5  Id.  perior  Court.  147  Cal.  467,  3  Ann. 
«  Duncan  v.  Yordy.  27  Kan.  348.      Cas.  340,  82  Pac.  70. 

I  Code  PI.  and  Pr.— 27  45^7 


§  333  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

tory  action,  notw-ithstanding  the  fact  that  the  defendant, 
in  his  answer,  sets  up  title  to  the  premises,  under  a  stat- 
ute^ providing  that  one  obtaining  possession  of  land  with^ 
out  the  consent  of  the  owner  shall  be  deemed  a  tenant  at 
sufferance  and  liable  for  a  reasonable  rent  for  the  use 
thereof ;-  and  in  the  absence  of  such  a  statute,  the  action 
is  founded  upon  an  implied  contract  to  pay  rent,  and  is 
for  that  reason  transitory,  being  founded  upon  privity  of 
contract  and  not  upon  privity  of  estate.^ 

In  Minnesota,  however,  it  is  held  that  in  case  of  a  tres- 
pass upon  land,  the  owner  thereof  can  not  waive  the  tort 
and  sue  on  implied  contract  for  use  and  occupation,  or 
for  rent  due  from  the  defendant  as  a  tenant.* 

§  333.    Joinder  of  real  and  personal  actions.  The 

joinder  of  real  and  personal  actions  in  the  same  complaint 
has  the  effect  of  destroying  the  local  character  of  the  real 
action,  and  of  making  of  the  whole  a  transitory  action, 
which  must  be  brought  and  tried  in  the  county  of  the 
defendant's  residence.^  Thus,  an  action  to  establish  a 
trust  in  real  and  personal  property  is  transitory,  because 
the  judgment  acts  in  personam;^  an  action  to  rescind 
contract  for  purchase  of  corporate  stock,  and  to  enjoin 
selling  real  property  under  trust  deed,  is  transitory,  and 
must  be  tried  in  county  in  which  defendant  resides.^  But 
in  order  that  the  personal  action  shall  destroy  the  local 
character  of  the  real  action  it  must  be  an  essential,  and 

1  As  in  Washington,  see  Rem.  &  4  Commonwealth  Title  Ins.  & 
Bal.  Code,  §  8805.  Trust  Co.  v.  Dokko,  71  Minn.  533, 

2  Sheppard  v.  Coeur  d'Alene  74  N.  W.  891;  McLane  v.  Kelly,  72 
Lumber    Co.,    62    Wash.    12.    Ann.  Minn.  395,  75  N.  W.  601. 

Cas.  1912C,  909,  44  L.  R.  A.  (N.  S.)  i  Smith  v.  Smith,  88  Cal.  572,  26 

267,  112  Pac.  932.  Pac.  356. 

3  Low  V.  Hallett,  3  Cai.   (N.  Y.)  2  State   ex   rel.   Scougale   v.   Su- 
82,  1  Cal.  &  C.  Cas.  432;  New  York  perior    Court,    55    Wash.    328.    133 
City    V.    Dawson,    2    Johns.    Cas.  Am.  St.  Rep.  1030,  104  Pac.  607. 
(N.  Y.)   335;   Henwood  v.  Cheese-  "  Nason    v.    Feldhusen,    34    Cal. 
man,  3  Serg.  &  R.  (Pa.)  500.  App.  789,  168  Pac.  1162. 

418 


Ch.  XV.]  ACTIONS    AFFECTING   PERSONALTY,  §  ;53-i 

not  merely  an  incidental,  feature  of  the  action.^  Thus,  it 
has  been  held  that  an  action  to  cancel  a  contract  foi-  the 
purchase  of  real  estate,  because  of  the  nonpayment  of 
the  installments  of  the  purchase  price  as  agreed,  to  de- 
clare the  payments  made  under  the  contract  forfeited,  and 
to  quiet  the  title  of  the  vendor  in  the  land,  does  not  con- 
stitute a  joinder  of  real  and  personal  actions.^  And  an 
action  to  enforce  a  trust  in  land,  and  for  an  accounting 
of  the  amount  due  the  plaintiff,  where  the  complaint  does 
not  allege  that  anything  is  due  the  plaintiff,  and  does  not 
ask  for  a  personal  judgment,  does  not  constitute  a  joinder 
of  a  real  and  a  personal  action,"  but  is  to  be  regarded  as 
an  action  having  for  its  sole  object  the  establishment  of  a 
trust  in  lands,  the  accounting  asked  for  being  merely 
incidental  to  the  action,  which  necessarily  involved  the 
ascertainment  of  the  amount  due  to  the  plaintiff,  if  any- 
thing.'^ 

§  334.  Action  affecting  personalty.  Where  an  action 
affects  the  title  to  or  the  right  to  the  possession  of  per- 
sonal property,  the  venue  is  the  county  in  which  the  prop- 
erty is  located ;  but  where  the  title  to  or  the  right  to  the 
possession  is  only  incidentally  involved,  the  venue  will 
be  the  county  of  the  residence  of  the  defendant.  Thus,. 
an  action  by  a  creditor  against  a  municipal  corporation 
to  prevent  it  from  applying  a  designated  fund,  on  deposit 
in  bank,  to  a  purpose  other  than  that  for  which  it  is 
alleged  to  have  been  created,  until  the  plaintiff's  claims 
are  adjusted  and  paid,  involves  a  question  as  to  the  title 
to  personal  property,  and  is  local  to  the  county  in  which 
the  bank  in  which  the  fund  is  deposited  is  located.^  But 
in  a  case  where  property  is  sold  under  an  agreement  that 

4  See,  ante,  §  327.  7  id.;    Green   v.   Brooks,   SI   Cal. 

•■■'  Robinson  v.  Williams,   12  Cal.      328,  22  Pac.  849. 
App.  520,  107  Pac.  707.  i  North  Yakima,  City  of,  v.  Su- 

fi Hannah  v.  Canty,  1  Cal.  App.      perior  Court,  4  Wash.  655,  30  Pac. 
225,  81  Pac.  1035.  1053     (under     §  158    Wash.     Code 

Proc). 
419 


§  334  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

the  proceeds  shall  be  deposited  in  bank  for  the  purpose  of 
satisfying  the  claims  of  A  and  other  creditors,  an  action 
in  equity  by  A  to  satisfy  his  claim  out  of  the  deposit,  in 
which  action  the  owner  of  the  property  sold  and  the  other 
creditors  are  made  parties  defendant,  is  a  personal  action 
and  not  an  action  against  the  deposit,  and  for  that  reason 
is  not  required  to  be  brought  in  the  county  in  which  the 
proceeds  are  deposited  in  bank,  but  may  be  brought  in 
any  county  in  which  one  or  more  of  the  defendants  reside.- 
In  a  case  where  the  only  cause  of  action  attempted  to  be 
stated  is  against  a  savings  bank  as  pledgee  and  another 
as  pledgor  of  certain  shares  of  the  capital  stock  of  a 
mining  corporation,  and  it  is  sought  to  compel  the  savings 
bank  to  deliver  to  the  plaintiff  corporation  the  shares  of 
its  stock  so  pledged,  there  is  no  controversy  over  real 
property,  and  the  judgment  operating  in  personam,  the 
action  is  transitory,  and  should  be  brought  in  the  county 
of  the  residence  of  the  pledgor,  or  removed  there  on 
application.^  In  determining  the  cause  of  action  to  be 
tried  in  such  a  case  and  the  proper  venue  of  the  action, 
the  court  mil  consider  the  complaint  only,'*  and  the  effect 
of  the  complaint  in  this  respect  can  not  be  varied  either 
by  the  affidavit  of  merits  filed  in  support  of  a  motion  for 
a  change  of  venue  or  by  a  verified  answer  f  these  can  be 
considered  as  affecting  the  question  of  residence  only.^ 
It  has  been  said  that  an  action  to  have  collateral,  including 
a  note  and  mortgage  upon  real  property,  sold  and  the 
proceeds  applied  upon  the  note  secured  by  such  collateral, 
is  not  an  action  to  foreclose  the  mortgage,  and  is  properly 

2  Kean    v.    Rogers    (Iowa),    118  plaintiff  is  no  part  of  the  cause  of 
N.  W.  515.  action,  and  can  not  be  considered 

3  Eddy  V.  Houghton,  6  Cal.  App.  in  determining  the  question  of  the 
85,  91  Pac.  397.  proper  venue. — Eddy  v.  Houghton, 

i  See,  ante,  §  318,  footnote  4.  6  Cal.  App.  85,  91  Pac.  397. 

Probative    facts    stated    in    the  5  Eddy  v.  Houghton,  6  Cal.  App. 

complaint  anticipating  the  reason      85,  91  Pac.  397. 
for  the  refusal  by  the  savings  bank  6  Id.;  Quint  v.  Dimond,  125  Cal. 

to  deliver  the  pledged  stock  to  the      572,  67  Pac.  1034, 

420 


eh.  XV.]  ACTIONS    ox    CONTRACTS.  §  335 

brought  in  the  county  in  which  the  plaintiff  resides.'  And 
an  action  for  an  accounting,  in  which  the  recovery  of  the 
possession  of  personal  propert}'  is  also  demanded,  the 
ownership  of  the  personal  property  being  raised  only 
incidentally,  need  not  be  brought  in,  and  the  trial  should 
not  be  removed  to,  the  county  in  which  the  personal  prop- 
erty is  located.^ 

<§.  335.  Actions  on  contracts — In  general.  The  general 
rule,  in  the  absence  of  a  statute  governing,  is  that  actions 
founded  upon  privity  of  contract  are  transitory,^  and  may 
be  brought  in  the  county  where  the  defendant  resides  or 
in  any  county  in  which  he  can  be  served  with  process. 
Thus,  an  action  upon  a  contractor's  bond  is  transitory, 
not  local.-  A  contract  creating  a  personal  obligation 
unconnected  with  any  business  transaction  in  the  county 
will  not  authorize  a  suit  to  be  maintained  in  the  county  of 
its  creation  against  a  nonresident  defendant.'^  An  action 
on  an  implied  contract  to  pay  rent,  against  a  tenant  hold- 
ing over,  is  to  be  brought  in  the  county  in  which  the  tenant 

7  Warren  v.  Herrington,  171  P.  R.  Co.,  65  Minn.  48,  60  Am.  St. 
N.  C.  165,  88  S.  E.  139.  Rep.  421,  33  L.  R.  A.  423,  67  N.  W. 

8  Clow  V.  McNeill,  167  N.  C.  212.  ^46.  MlSS.-Oliver  v.  Love,  59 
83  S   E  '08  ^*^^-  ^^^'  NEB.— McNee  v.  Sewell, 

■     ■  "     ■  H  Neb.  522,  16  N.  W.  827;  Insur- 

1  KY.-Parish  v.  Oldham,  26  Ky.      ^^^^  ^^   ^^  ^^^,^^  ^^^^.^^  ^   ^j^. 

(3  J.  J.  Marsh.)  544;   Kendrick  v.  Li^^ans,  28  Neb.  653,  44  N.  W.  991; 

Wheatley,    33    Ky.    (3    Dana)    34;  Omaha  &  R.  V.  R.  Co.  v.  Brown, 

Henderson  v.  Perkins,  94  Ky.  207,  29    Neb.    492,    500,    46    N.    W.    39. 

21  S.  W.  1035;   Trimble's  Exrx.  v.  N.  H. — Educational  Soc.  v.  Varney, 

Lebus,  94  Ky.  304,  22  S.  W.  329;  54   N.    H.    376;    Thayer   v.    Padel- 

Bullitt  V.  Eastern  Kentucky  Land  ford,    69    N.    H.    301,    41   Atl.    447. 

Co.,  99  Ky.  324,  36  S.  W.  16.   MD.—  VA.— Shaver    v.    White,    6    Munf. 

Crook  V.  Pitcher,  61  Md.  510;  Gun-  110,  8  Am.   Dec.  730.     FED.— Liv- 

ther  V.   Dranbauer,   86   Md.    1,   38  ingston  v.  Jefferson,  1  Brock.  203, 

Atl.  33.    MASS.— Barren  v.  Benja-  Fed.  Cas.  No.  8411;  Mohr  &  Mohr 

rain,  15  Mass.  354;  Vermont  &  M.  Distilling  Co.  v.  Insurance  Co.,  12 

R.    Co.    V.    Orcutt,    82    Mass.    (16  Fed.  474. 

Gray)  116;  Roberts  v.  Knights,  89  2  State    v.    Tryholm,    139    Minn. 

Mass.  (7  Allen)   449.     MICH.— At-  389,  166  N.  W.  533. 

kins    V.    Borstler,    46    Mich.    552.  3  Carmichael    v.    Arms,    51    Ind. 

MINN.— Little  v.  Chicago,  M.  &  St.  App.  689,  100  N.  E.  302. 

421 


§  336  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

resides,  altliougli  the  lease  under  which  he  entered  pro- 
Added  for  payment  of  rent  in  another  county.'*  But  a  con- 
tract expressly  agreeing  to  pay  money  at  a  certain  place, 
lays  the  venue  of  an  action  to  recover  such  money,  on  a 
lareach  of  the  contract,  in  the  county  in  which  the  payment 
was  to  be  made.-'^  And  the  place  at  which  the  last  act 
necessary  to  perfect  a  contract  of  sale  is  performed,  has 
been  said  to  be  the  place  of  the  completion  of  the  action 
and  the  place  where  the  cause  of  action  arises.^ 

In  case  of  nonresideuce  of  a  party  to  a  contract  who  is 
in  default  in  the  performance  thereof,  an  action  may  be 
brought  on  the  contract  in  any  county  in  the  state,  not- 
withstanding a  statutory  provision  requiring  the  action  to 
be  brought  in  the  county  in  which  the  defendant  resides."^ 

§  336.    Under  statute.    Statutes  have  been  passed 

in  many  of  the  jurisdictions^  under  which  actions  on  con- 
tracts, or  suits  for  their  breach,^  are  to  be  instituted  and 
tried  in  the  county  in  which  the  contract  was  to  be  per- 
formed,^ and  this  has  been  said  to  include  implied  as  Avell 

4  Wixom  V.  Hoar,  158  Iowa  426,  3  COLO.— Brewer  v.  Gordon,  27 
139  N.  W.  890.  Colo.   Ill,  83   Am.   St.   Rep.  45,  59 

5  Parrott  v.  Peacock  Military  Pac.  404;  Gould  v.  Mathes,  55 
College  (Tex.  Civ.  App.),  180  S.  W.  Colo.  384,  135  Pac.  780;  Maxwell- 
132.  Chamberlin  Motor  Co.  v.  Piatt,  173 

Notes  payable  in  A  county,  but  Pac.    867;     Montezuma    County 

in  case  of  default  to  be  paid  at  a  Commrs.   v.    San   Miguel    County 

designated  place  in  B  county,  are  Commrs.,  3  Colo.  App.  137,  32  Pac. 

])roperly  sued  in  B  county. — New-  346;    Wason  v.   Bigelow,   11   Colo, 

man  v.  Buffalo  Pitts  Co.  (Tex.  Civ.  App.  120,  52  Pac.  636;  Peabody  v. 

App.),  160  S.  W.  657.  Oleson,  15  Colo.  App.  346,  62  Pac. 

c  Peters     v.     Painter    Fertilizer  234 ;    Coulter  v.   Bank  of  Clear 

Co.,  E.  O.  (Fla.),  75  So.  749.  Creek  County,  18  Colo.  App.  444. 

7  Atkins  V.  Borstler,  46   M  i  c  h.  72    Pac.    602.     GA.—  Sutton   v. 

552.  Southern  R.   Co.,   101  Ga.  776,  29 

1  As   Colorado   Code   Civ.    Proc,  S.  E.  53.    IOWA— Troy  v.  Portable 

§§27,   28;    Ky.   Civ.   Code   Proc,  Grain  Mill  Co.,  7  Iowa  465;   Hunt 

§72;  Mont.  Code  Civ.  Proc,  §613,  v.  Bratt,  23  Iowa  171;   Armstrong 

Rev.  Codes,   §6504,  etc.  ■  v.  Borland,  35  Iowa  537;  Sanbourn 

li  Nolin   Milling   Co.    v.   White  v.  Sinith,  44  Iowa  152;   Wright  & 

Grocery   Co.,   168   Ky.   417,   182  L.  Oil  &  Lard  Mfg.  Co.  v.  Kleigel, 

S.  W.  191.  70  Iowa  578,  31  N.  W.  878;  Bradley 

422 


ch.  XV.]  ACTIONS   ON    CONTRACTS — CALIFORNIA.  §  337 

as  express  contracts/  although  the  defendant  resides  in 
another  county;'''  and  under  such  a  statute  the  place  of 
the  execution  of  a  contract  of  indemnity  does  not  control 
the  jurisdiction  in  an  action  on  such  contract.**  And  where 
a  bond  incorporates,  by  reference,  a  contract  providing 
that  the  bond  shall  be  enforceable  in  the  county  of  the 
owner's  residence,  suit  upon  such  bond  may  be  instituted 
in  such  county,  notwithstanding  the  fact  that  the  sureties 
sued  are  nonresidents.'  But  under  such  a  statute  an 
account  will  not  be  included  within  the  provisions,  and 
must  be  sued  in  the  county  of  the  residence  of  the  defen- 
dant debtor.*  ■ 

§337.    In  California.     In  California  actions  on 

contracts,  or  obligations  growing  out  of  a  tort,^  and  thej^ 
like,  are  properly  brought  and  tried  in  the  county  in  whicli*" 
the  contract  was  entered  into  or  the  obligation  arose,  even 
in  those  cases  in  which  the  defendant  is  a  corporation, 
with  its  principal  office  and  place  of  business  in  another 
county. - 

V.   Palen,   78  Iowa   126,   42   N.  W.  4  State  ex  rel.  Interstate  Lumber 

623;   Davis  v.  Miller,  88  Iowa  114,  Co.  v.  District  Court,  54  Mont.  602, 

55  N.  W.  89;   Eastern  Granite  Co.  172  Pac.    1030. 

V.   Heim,   89   Iowa   098,   57   N.   W.  5  State  ex  rel.  Interstate  Lumber 

437;    Prader  v.   National   Masonic  Co.  v.  District  Court,  54  Mont.  602, 

Accident  Assoc,  107  Iowa  431,  78  172  Pac.  1030. 

N.  W.  60.  MONT.— Yore  v.  Murphy,  o  Brewer  v.  Gordon,  27  Colo.  Ill, 

10  Mont.  304,  25  Pac.  1039;   State  S3  Am.  St.   Rep.  45,  59  Pac.  404; 

ex  rel.   Coburn   v.   District  Court,  Smith  v.  Post  Printing  &  Pub.  Co., 

41  Mont.  84,  108  Pac.   144;    State  17  Colo.  App.  238,  68  Pac.  119. 

ex  rel.  Interstate   Lumber  Co.  v.  7  Hillyer-Deutsch  Lumber  Co.  v. 

District  Court,   54   Mont.  602,  172  Clark  (Tex.  Civ.  App.),  185  S.  W. 

Pac.  1030.    UTAH— Bach  v.  Brown,  1038. 

17  Utah  435,  53  Pac.  991.  s  McDonnell  v.  Collins,  19  Mont. 

Real  estate  agent's  contract  for  372,  48  Pac.  549. 

commission,  cause  of  action  arises  i  Lewis  v.  Southern  Pac.  R.  Co., 

where    primary    contract    entered  66  Cal.  209,  5  Pac.  79. 

into,    notwithstanding   a   supple-  As  to  actions  for  tort,  see,  post, 

mental  agreement  made  elsewhere  §  338. 

limiting    the   commission.  —  Fitz-  i;  See,  among  other  cases,  Lewis 

gerald   v.   Southern   Farm  Agency  v.   Southern   Pac.   R.   Co.,   66   Cal. 

(Va.),  94  S.  E.  761.  209,  5  Pac.  79;   Fresno  Nat.  Bank 

423 


§338 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


<§>  338.  Actions  for  tort — In  general,.  Torts  are  of  two 
kinds,  consisting  (1)  in  injuries  to  the  person  and  (2)  in- 
juries to  the  property.^  Tortuous  injury  to  property  is 
either  (1)  injury  to  personal  property-  or  (2)  injury  to 
real  property.^  Where  the  action  is  for  a  tortuous  injury 
to  real  property,  the  action  depending  on  privity  of  title 
is  local,  and  we  have  already  seen  the  action  must  be  com- 
menced and  tried  in  the  county  in  which  the  land  is  sit- 
uated,"* in  California  and  probably  in  all  other  jurisdic- 
tions,— except  in  those  cases  in  which  the  owner  of  the  real 
estate  waives  the  tort  and  sues  in  simple  damages^  or  for 
use  and  occupation,*'  or  where  a  personal  action  is  joined 
with  the  action  for  the  tortuous  injury,"^  in  either  of  which 
cases  the  cause  of  action  becomes  transitory  in  its  nature, 
and  the  action  is  to  be  commenced  and  the  trial  had  in  the 
county  in  which  the  defendant  resides  or  has  his  domicile, 
or  where  he  can  be  served  with  process,^  subject  to  the 


V.  Superior  Court,  83  Cal.  491,  498, 
24  Pac.  157;  Trezevant  v.  Strong 
Co.  (W.  R.),  102  Cal.  47,  36  Pac. 
395;  Whitney  &  Co.  (C.  E.)  v. 
Sellers'  Commission  Co.,  130  Cal. 
188,  62  Pac.  472. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  27. 

2  Id.,  §§  27,  28. 

Conspiracy  to  deny  plaintiff's 
right  to  certain  pasture  being 
charged,  and  damages  demanded 
therefor,  no  relief  being  asked  as 
to  the  real  estate,  is  a  personal 
action  in  tort,  and  transitory. — 
Dunn  V.  Superior  Court,  35  Okla. 
38,  128  Pac.  114. 

3  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc.   §§27,  28. 

4  See,  ante,  §§  323  et  seq.  See 
Brown  v.  Louisiana  &  N.  W.  R. 
Co.,  118  La.  87,   42   So.   656. 

Fraud  upon  wife  by  liusband  in 
a   county,   in   which  some   of  the 


property  involved  is  situated,  and 
seeking  to  establish  a  resulting 
trust  in  favor  of  the  wife,  is 
properly  brought  in  a  county. — 
Fox  V.  Fox  (Tex.  Civ.  App.),  179 
S.  W.  833. 

5  See,  ante,  §  330. 

6  See,  ante,  §  332. 
V  See,  ante,   §  333. 

8  Id.  See  Kerr's  Cyc.  Cal.  Code 
Civ.  Proc,  2d  ed.,  §395;  Consoli- 
dated Supp.  1906-1913,  p.  1425. 
See  Sparks  v.  Fitzgerald,  86  Kan. 
628,  122  Pac  98. 

In  Massachusetts,  under  Rev. 
Laws,  ch.  107,  §  6,  as  amended  by 
Stats.  1904,  ch.  320,  an  action  for 
damages  for  personal  injury  suf- 
fered through  negligence  of  de- 
fendant, was  improperly  brought 
in  the  county  where  he  was  in- 
jured, he  residing  in  another 
county. — Hanley  v.  Eastern  Steam- 
ship Co.,  221  Mass.  125,  Ann.  Cas. 
1917D,  1034,  109  N.  E.  167. 


424 


ell.  XV.]  ACTIONS   FOR   TORT — UNDER   STATUTE. 


§339 


light  of  change  of  venue,^  except  in  those  cases  in  which 
the  defendant  is  a  nonresident  of  the  state,  or,  if  resident 
within  the  state,  the  county  of  his  residence  is  unknown, 
in  either  of  which  cases  the  action  may  be  brought  and 
trial  had  in  any  county  designated  by  the  plaintiff.^^  In  a 
case  of  injury  to  the  person, ^^  or  to  personal  property,  the 
action  is  transitory,  and  must  be  brought  and  tried  in  the 
county  in  which  the  defendant,  or  one  of  them,  resides. ^^ 
In  a  transitory  tort-action,  the  fact  that  the  tort  was  com- 
mitted in  another  county  than  the  one  in  w^hich  the  suit 
is  brought,  is  unimportant,^^  even  under  a  constitutional 
provision  requiring  that  all  civil  and  criminal  business 
originating  in  a  county  must  be  tried  in  that  county.  ^^ 

§  339.    Under  statute.     By  special  provision  of 

statute  in  some  of  the  jurisdictions, — among  others  in 


9  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §397;  Consolidated 
Supp.  1906-1913,  p.   1429. 

10  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §395;  Consolidated 
Supp.  1906-1913,  p.   1425. 

11  Phillips  V.  Baltimore,  City  of, 
110  Md.  431,  25  L.  R.  A.  (N.  S.) 
711,  72  Atl.  902;  Hilsop  v.  Taaffe, 
141  App.  Div.  (N.  Y.)  40,  125  N.  Y. 
Supp.  614;  Mattison  v.  Boston  & 
M.  R.  Co.,  205  Fed.  821. 

Action  for  personal  injuries  by 
employee  to  be  commenced  i  n 
county  where  parties  reside. — 
Hilsop  V.  Taaffe,  141  App.  Div. 
(N.  Y.)   40,  125  N.  Y.  Supp.  614. 

Action  to  recover  damages  for 
negligence,  being  in  tort  is  transi- 
tory and  may  be  brought  in  any 
county  i  n  which  the  defendant 
may  be  found. — Mattison  v.  Bos- 
ton &  M.  R.  Co.,  205  Fed.  821. 


False  imprisonment  charged,  de- 
fendant is  entitled  to  have  action 
tried  in  the  county  of  his  resi- 
dence.— Ah  F  o  n  g  V.  Sternes,  79 
Cal.  30,  21  Pac.  381. 

12  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §395;  Consolidated 
Supp.  1906-1913,  p.  1425.  See 
Krogh  V.  Pacific  Gateway  &  Devel. 
Co.,  11  Cal.  App.  237,  104  Pac.  698. 

Automobile  colliding  with  street- 
car, action  for  damages  is  transi- 
tory, and  the  district  court  of  the 
Canal  Zone  has  jurisdiction, 
although  the  collision  occurred  in 
Panama. — Panama  Elec.  R.  Co.  v. 
Moyers,  249  Fed.  19. 

isAnamey  v.  Caughenaur,  34 
Kan.  621,  9  Pac.  476;  Sanipoli  v. 
Pleasant  Valley  Coal  Co.,  31  Utah 
114,  10  Ann.  Cas.  1142,  86  Pac.  865. 

14  Sanipoli  v.  Pleasant  Valley 
Coal  Co.,  31  Utah  114,  10  Ann.  Cas. 
1142,  86  Pac.  865. 


425 


§339 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I, 


Colorado,*  Delaware,-  Georgia,^  Kentucky,*  New  York,^ 
and  Texas,^ — actions  for  damages  for  a  tort  may  or  must 
be  conunenced  in  the  county  in  wbicli  the  tort  occurred 
or  was  committed.  Under  such  a  statute  an  action 
charging  a  fraud  is  properly  commenced  in  the  county  in 
which  the  fraud  was  committed,  regardless  of  the  place 


1  Colorado  Code,  §§  27,  28.  See: 
Law  V.  Drinker,  6  Colo.  555;  Bean 
V.  Gregg,  7  Colo.  499,  4  Pac.  903; 
Newell  V.  Giggey,  13  Colo.  16,  21 
Pac.  904;  Carlson  v.  Rensink 
(Colo.),  173  Pac.  542;  Denver  & 
R.  G.  R.  Co.  V.  Cahill,  8  Colo.  App. 
158,  45  Pac.  285. 

Fraud  in  exchange  of  real  prop- 
erty  is  falsely  and  deceitfully 
showing  another's  lands  in  A 
county  exchanged  for  property  in 
B  county,  all  the  parties  residing 
In  B  county,  where  process  was 
served,  action  properly  brought 
and  tried  in  latter  county.— Carl- 
son V.  Rensink  (Colo.),  173  Pac. 
542. 

2  Del.  Rev.  Code  1915,  §4178. 
See  Wolfe  v.  Baltimore  &  Philadel- 
phia Steamboat  Co.  (Del.  Super.), 
99  Atl.  304. 

3  Atlantic  Coast  Line  R.  Co.  v. 
Powell,  127  Ga.  805,  9  L.  R.  A. 
(N.  S.)    769,  56  S.  E.  1006. 

4  Ky.  Civ.  Code  Proc,  §  74.  See: 
Rains  v.  Smith,  155  Ky.  766,  160 
S.  W.  493;  Moser  v.  Fable,  164 
Ky.  517,  175  S.  W.  997. 

False  imprisonment  charged, 
action  for  damages  must  be 
brought  in  the  county  where  the 
imprisonment  occurred. — Rains  v. 
Smith,  155  Ky.  766,  160  S.  W.  493. 

Malicious  prosecution  charged, 
action  for  damages  properly  com- 
menced in  t  h  e  county  in  which 


the    arrest   occurred. — M  o  s  e  r  v. 
Fable,  164  Ky.  517,  175  S.  W.  997. 

5  Jacina  v.  Lemmi,  155  App. 
Div.  (N.  Y.)  397,  139  N.  Y.  Supp. 
1034. 

6  Tex.  Rev.  Stats.  1895,  art. 
1194;  Id.,  1911,  art.  1830.  See: 
Hubbard  v.  Lord,  59  Tex.  384; 
Raleigh  v.  Cook,  60  Tex.  438;  Belo 
V.  Wren,  63  Tex.  686;  Campbell 
V.  Timble,  75  Tex.  270,  12  S.  W. 
863;  Milliard  v.  Wilson,  76  Tex. 
180,  13  S.  W.  25;  Hill  v.  Kimball, 
76  Tex.  210,  13  S.  W.  59;  Ricker 
v.  Shoemaker,  81  Tex.  22,  16  S.  W. 
645;  Connor  v.  Saunders,  81  Tex. 
633,  17  S.  W.  236;  Hunt  v.  Hardin, 
14  Tex.  Civ.  App.  285,  36  S.  W. 
1028;  London  v.  Miller,  19  Tex. 
Civ.  App.  446,  47  S.  W.  734;  Kleine 
V.  Gidcomb  (Tex.  Civ.  App.),  152 
S.  W.  4  6  2;  Ward  v.  Odem 
(Tex.  Civ.  App.),  153  S.  W.  634; 
Thomason  v.  Rogers  (Tex.  Civ. 
App.),  155  S.  W.  1040;  Winslow  v. 
Gentry  (Tex.  Civ.  App.),  154  S.  W. 
260;  Carver  v.  Merrett  (Tex.  Civ. 
App.),  184  S.  W.  741. 

Garnishment  wrongfully  sued 
out  not  within  provisions  of  Texas 
statute,  and  action  for  damages 
can  not  be  maintained  in  county 
in  which  garnished  funds  were 
levied  upon  instead  of  that  of 
defendant's  domicile.  —  Thomas 
Goggan'  Bros.  v.  Morrison  (Tex. 
Civ.  App.),  163  S.  W.  119. 


426 


ell.  XV.]  ACTIONS    FOR    PEN  A I  .TIES,    ETC.  §  M4() 

of  residence  of  the  parties  to  the  action  ;'  but  the  stoppage 
of  payment  on  a  check  given  in  li(]ui(lation  of  a  gambling 
debt  is  not  a  fraud  within  such  a  statute."*  Under  the 
Texas  statute  thus  fixing  the  venue  in  actions  for  a  tort, 
"trespass"  means  any  intentional  wrong;'*  signifies  an 
active  as  contradistinguished  from  a  passive  wrong  in  iho, 
omission  of  a  legal  duty.^**  An  action  on  contract  to 
recover  damages  for  failure  to  deliver  a  telegram,  is  not 
an  action  on  a  tort  for  a  personal  injury,  within  the 
meaning  of  such  statutes. ^^ 

§  340.  Actions  for  penalties  or  forfeitures — In  gen- 
eral. At  common  law,  actions  for  the  recov^ery  of  statu- 
tory penalties  or  forfeitures,  although  of  a.  local  aspect, 
were  suable  in  an  action  of  *'debt,"  and  were  therefore 
transitory  ;i  but  in  California,  and  in  all  other  jurisdic- 
tions having  procedural  codes,  an  action  to  recover  a 
penalty  or  forfeiture  imposed  by  statute  is  local,  and  is 
required  to  be  instituted  and  tried  in  the  county  in  which 
the  cause  of  action,  or  some  part  of  it,  in  fact  arose. - 
This  is  thought  to  be  substantially  the  provision  in  all 
the  American  jurisdictions,  regardless  of  whether  they 

7  Martin  v.   Frank   Co.,  A.   B.  land  charged,  action  to  recover 

(Tex.  Civ.  App.),  125  S.  W.  958.  money  paid  for  option  properly 

Conversion  by  real  estate  agent  brought   in   county   where   land 

of  land  he  was  employed  to  sell,  located. — Kleine  v.  Gidcomb  (Tex. 

being  charged,   action   may  be  Civ.  App.),  152  S.  W.  462. 

brought  in  county  in  which   land  8  Lloyd  v.  Robinson    (Tex.   Civ. 

sold   is    situated. — Thomason    v.  App.),  160  S.  W.  128. 

Rogers  (Tex.  Civ.  App.),  155  S.  W.  9  Ward   v.    Odem    (Tex.    Civ. 

1040.  App.),  153  S.  W.  634. 

Conversion  of  securities  pledged  lOWinslow  v.  Gentry  (Tex.  Civ. 

charged,  action  may  be  brought  in  App.),  154  S.  W.  260. 

county   in   which  conversion  by  1 1  Western    Union    Tel.    Co.    v. 

agent   occurred    against    principal  Morrison    (Ala.   App.),   74    So.    88. 

residing  elsewhere.  —  Carver  v.  i  See  Gilbert  v.  Marcy,  1  Kirby 

Merrett    (Tex.   Civ.   App.),   184  (Conn.)  401. 

S.  W.  741.  :>  See  Kerr's  Cyc.  Cal.  Code  Civ. 

Misrepresentation    by    agent    of  Proc,  §393. 

427 


§  340  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

have  procedural  codes  or  not.^  This  provision  of  the 
California  statute, — and  the  same  is  doubtless  true  of  all 
similar  provisions  in  procedural  codes, — relates  to  and 
includes  ordinary  actions  at  law,  but  does  not  include 
special  proceedings."*  The  provision  allowing  the  plain- 
tiff to  have  the  action  tried  in  a  county  other  than  that 
in  which  the  defendant  resides,  being  exceptional,  the 
plaintiff  must  bring  his  case  clearly  within  the  exception.'^ 
Thus,  a  statute  providing  for  the  recovery  of  specified 
penalties  does  not  apply  in  those  cases  in  which  the  pen- 
alty is  a  mere  added  incident  of  another  action, — e.  g.,  an 
action  to  recover  an  illegal  allowance  made  by  county 
officers,^ — or  to  an  action  in  which,  under  the  particular 
statute,  recovery  of  the  penalty  is  otherwise  provided 
for, — e.  g.,  an  action  to  recover  penalties  for  the  unlawful 
use  of  milk  bottles  or  milk  cans,'''  or  an  action  to  recover 
a  penalty  for  setting  a  woods  on  fire,  brought  before  a 
justice  of  the  peace,  the  statutory  provision  being  limited 
to  coi:rts  of  record,^  or  to  actions  to  recover  penalties 
under  fish  and  game  laws.**  It  is  not  applicable  to  an 
action  against  a  public  officer  to  recover  on  a  forfeited 
official  undertaking;^"  or  in  an  action  for  a  mere  pecun- 
iary liability  arising  under  a  statute, — e.  g.,  an  action  by 
a  creditor  of  a  corporation  to  recover  the  amount  of  his 
debt  from  the  officers  thereof,  on  the  ground  that  they 

3  See  48  Cent.  Dig.  Cal.  1537,  703;  Bell  v.  Polymero,  99  App. 
§18;  20  Decen.  Dig.,  p.  388,  §9;  Div.  (N.  Y.)  303,  90  N.  Y.  Supp. 
Am.  Digs.,  tit.  "Venue,"  §  9.  920. 

4  Santa  Rosa,  City  of,  v.  Foun-  ^  ^i^^er  v.  Bullard,  109  N.  C. 
tain  Water  Co.,  138  Cal.  579,  581,  ^'^4.  13  S.  E.  799,  holding  action 
71  Pac  1122  before  justice  could  be  maintained 

in  the  county  of  the  residence  of 

5  Brady  v.  Times-Mirror  Co..  106  ^^^  defendant,  although  the  woods 
Cal.  56,  58,  39  Pac.  209.  involved  was  situated  in  another 

6  Kearny    County    Commrs.    v.      county. 

Rush,  44  Kan.  231,  24  Pac.  484.  9  Leonard    v.    Ehrich,    40    Hun 

7  Bell  V.  Niewahner,  54  App.  (N.  Y.)  460;  People  v.  Rouse,  39 
Div.  (N.  Y.)  530,  66  N.  Y.  Supp.  N.  Y.St.  Rep.  656,  15  N.  Y.  Supp. 
1096;   Warner  v.  Palmer,  66  App.  414. 

Div.    (N.  Y.)    127,  72  N.  Y.   Supp.  10  Ison,  In  re,  6  Ore.  4GD. 

428 


Ch.  XV.]  ACTIONS   FOR   PENALTIES,   ETC.  §  341 

have  been  guilty  of  fraud,  unfaithfulness,  or  dishonesty  ;^^ 
or  to  an  action  to  recover  (1)  compensatory  damages 
and  (2)  a  penalty  provided  by  statute,  both  claims  being 
founded  upon  and  growing  out  of  the  same  act  of  the 
defendant,  the  former  being  a  transitory  action^-  and  the 
latter  a  local  one.^^  Neither  does  it  apply  to  an  action 
to  recover  a  penalty  imposed  by  law  upon  a  railroad 
company  refusing  to  obey  an  order  of  the  state  railroad 
commission,  requiring  the  erection  of  a  depot  at  a  desig- 
nated place ;  in  which  case  the  venue  of  the  action  is  not 
in  the  county  in  which  the  place  is  situated  at  which  the 
depot  is  directed  to  be  erected,  but  at  the  county  in  which 
the  corporation  has  its  principal  office  and  place  of  busi- 
ness within  the  state." 

§  341.  Actions  to  which  applicable.  These  stat- 
utes are  applicable  to  penalties  and  forfeitures  arising 
by  operation  of  law, — e.  g.,  suit  on  a  forfeited  recog- 
nizance,^— as  well  as  to  acts  of  commission-  and  omis- 
sion,^— except  an  omission  by  a  railroad  company  to  build 
a  depot  in  compliance  with  an  order  of  the  state  railroad 
commission,^ — as  an  omission  to  attend  in  compliance 
with  the  command  of  a  subpoena,^  without  reference  to 

11  Flowers  v.  Bartlett,  66  Minn.  i  Smith  v.  Collins,  42  Kan.  259, 
213,  217,  68  N.  W.  976,  following      262,  263,  21  Pac.  1058. 

National  Newhaven  Bank  V.  North-  2  Com.  v.  Long,  17  Ky.  L.  Rep. 

western    Guaranty    Loan    Co.,    61  207,  30  S.  W.  628;  Baltimore  &  O. 

Minn.  375,  63  N.  W.  1079,  in  over-  R.    Co.    v.    Hollenberger,    76    Ohio 

ruling    Merchants'    Nat.    Bank    of  St.  177,  81  N.  E.  184. 

Chicago  V.   Northwestern  Mfg.   &  3  Wilkie  v.  Chadwick,  13  Wend. 

Car  Co.,  48   Minn.  349,   51  N.  W.  (N.    Y.)    49;    Ithaca   Fire    Depart- 

119.  ment  v.  Beecher,  99  N.  Y.  429,  2 

12  Wilkie  V.  Chadwick,  13  Wend.  N.  E.  154. 

(N.  Y.)  49.  -1  Central   of  Georgia   R.   Co.   v. 

13  Cogswell  V.  Meech,  12  Wend.  State,  104  Ga.  831,  42  L.  R.  A.  518, 
(N.  Y.)  147.  31  S.  E.  531. 

14  Central  of  Georgia  R.  Co.  v.  •'>  Cogswell  v.  Meech,  12  Wend. 
State,  104  Ga.  831,  42  L.  R.  A.  518,  (N.  Y.)  147;  Wilkie  v.  Chadwick, 
31  S.  E.  531.  13  Wend,  (N.  Y.)  49. 

429 


§  342  CODE   PLEADING   AND   PRACTICE.  [I't.  [, 

the  residence  of  the  parties/'  except  as  noted  above  re- 
specting corporations."^  Thus,  it  has  been  held  that  such 
statutes  apply  to  actions  to  recover  penalties  for  failure 
to  pay  the  required  percentage  on  insurance  perfected 
within  the  county  f  to  recover  penalties  for  nonattendance 
as  witness  in  response  to  subpoena  duly  served;"  to 
actions  to  recover  statutory  penalty  against  a  common 
carrier  for  overcharging;^"  and  to  actions  to  recover 
penalties  for  unlawfully  carrying  on  business/^  or  unlaw- 
fully giving  rebates  by  an  insurance  company  or  a  rail- 
road.^- Action  on  a  judgment  of  amercement  against  a 
sheriff  for  failure  to  perform  his  official  duty,  may  be 
brought  against  the  sureties  on  his  bond  in  the  county  in 
which  the  amercement  was  had:^^ 

§  342.    Exceptions  to  the  rule.     In  California,^ 

Nebraska,-  New  York,^  and  probably  elsewhere,  it  is 
especially  provided  that  when  a  penalty  or  forfeiture  is 
imposed  for  an  offense  committed  on  a  lake,  river,  or 
other  stream  of  water,  situated  in  two  or  more  counties,'* 
or  upon  a  road  which  is  the  boundary  of  two  or  more 
counties,^  the  action  may  be  brought  in  any  county  bor- 
dering on  such  lake,  river,  or  stream,*'  or  road,^  and  oppo- 
site to  the  place  where  the  offense  was  committed.^ 

G  Smith  V.  Collens,  42  Kan.  259,  i3  McNee  v.  Sewell,  14  Neb.  532, 

21  Pac.  1058.  16  N.  Y.  827. 

7  See,  ante,  §  340,  footnote  14.  i  See  Kerr's  Cyc.  Cal.  Code  Civ. 

s  Ithaca     Fire     Department     v.  Proc,  §  393. 

Beecher,  99  N.  Y.  429,  2  N.  E.  154.  2  Code  Civ.  Proc,  §  54. 

9  Cogswell  V.   Meech,  12  Wend.  3  Code  Civ.  Proc,  §  983. 
(N.  Y.)   147;   Wilkle  v.  Chadwick,  4  See  note  1,  this  section. 
13  Wend.  (N.  Y.)  49.  5  See  note  2,  this  section. 

10  Baltimore  &  O.  R.  Co.  v.  Hoi-  «  See  note  1,  this  section, 
lenberger,  76  Ohio  St.  177,  81  N.  E.  t  See  note  2,  this  section. 

184.  ^  See  McNee  v.  Sewell,  14  Neb. 

11  Com.  V.  Grand  Central  Build-  532,  16  N.  W.  827;  Bell  v.  Nie- 
ing  &  Loan  Assoc,  97  Ky.  325,  30  wahner,  54  App.  Div.  (N.  Y.)  530, 
S.  W.  626.  66   N.   Y.   Supp.    1096;    Warner   v. 

12  See  Com.  v.  Long,  17  Ky.  L.  Palmer,  66  App.  Div.  (N.  Y.)  127, 
Rep.  207,  30  S.  W.  628.  72  N.  Y.  Supp.  703. 

430 


ch.  xv,]         actions  in  representative  capacity.  §  343 

§  343.  Actions  by  and  against  persons  in  representa- 
tive CAPACITY — In  general.  At  common  law,  an  adminis- 
trator, executor,  or  other  person  acting  in  a  representa- 
tive capacity,  was  sued  in  transitory  actions  in  the  place 
where  he  resides.^  In  this  country  the  venue  in  actions 
hy  and  against  persons  acting  in  a  representative  capacity 
is  largely  a  matter  of  statutory  provision.  In  some  of  the 
jurisdictions  the  venue  in  such  actions  is  declared  to  be 
where  it  would  have  been  necessary  to  sue  the  deceased 
or  other  person  represented;-  in  others  administrators 
and  executors  are  to  be  sued  in  the  county  in  which  the 
estate  is  being  administered,  regardless  of  where  the 
subject-matter  is  situated;^  while  in  yet  other  jurisdic- 
tions an  action  against  an  administrator  or  executor  for 
an  accounting  must  be  brought  in  the  county  in  which  he 
resides,  even  though  the  property  of  the  estate  is  located 
in  another  county.**  An  action  by  an  administrator  or 
executor  to  recover  the  price  of  property  of  the  estate 
Kold  by  him,  must  be  brought  in  the  county  in  which  one 
or  more  of  the  defendants  reside.^  An  action  by  creditors 
against  an  assignee  of  their  debtor  to  compel  an  account- 
ing and  settlement  of  the  assignment,  should  be  brought 
where  the  assignee  resides.*"'  Action  by  a  ward  or  his 
representative  against  the  guardian,  under  some  statutes, 
is  required  to  be  brought  in  the  county  in  which  the  guard- 
ian qualified.'^  A  right  of  one  whose  property  has  been 
injured  to  sue  to  recover  damages  therefor  in  the  county 
in  which  the  cause  of  action  arose,  has  been  said  not  to 
extend  to  his  personal  representative.*^ 

1  Thompson   v.   Wood,    115    Cal.  c  Campbell  v.  Crawford,  G3  Ala. 

301,  47  Pac.  50.  392. 

"  ^^-  7  Stone's  Adm'r  v.  Powell,  52  Ky. 

3Neill    V.    Owen,    3    Tex.    145;       (13  B.  Mon.)  342;  Greenly  v.  Dan- 

Bondies  v.  Buford,  58  Tex.  266.  jeig,  69  Ky.  (6  Bush)  41. 

4  Ware   v.   Henderson,   25    S.   C.  c  o     *i,        *         t^    /-.  t^     ,, 

^  s  Southwestern  R.  Co.  v.  Paulk, 

•  24  Ga.  356. 

r.  Pate  V.  Taylor,  66  Miss.  97,  5 

So.  515. 

431 


§§  344, 345  CODE  pleading  and  practice.  [Pt.  I, 

§  344.  In  California.  There  is  no  statute  in  Cali- 
fornia especially  governing  the  venue  in  the  case  of 
actions  by  or  against  persons  acting  in  a  representative 
capacity.  There  is  no  statute  designating  any  official 
residence  for  administrators  or  executors  ;^  and  they  are 
not  public  officers  within  the  meaning  of  the  statute  fixing 
the  venue  as  to  the  latter. ^ 

§  345.  Actions  against  a  public  officer.  The  Califor- 
nia statute  provides  that  all  actions  against  a  public 
officer,  or  person  especially  appointed  to  execute  his  du- 
ties, for  an  act  done  by  him  in  virtue  of  his  office,  or 
against  a  person  who  by  command  of  a  public  officer  or 
in  his  aid,  does  anything  touching  the  duties  of  such 
officer, — must  be  tried  in  the  county  in  which  the  cause 
of  action,  or  some  part  thereof,  arose,  subject  to  the 
power  of  the  court  to  change  the  place  of  trial.^  This 
statute  applies  to  and  includes  acts,  and  is  limited  to  acts, 
affirmatively  done  f  it  does  not  include  omissions  to  act, 
when  it  was  ^^^thin  the  scope  of  their  office  and  their  duty 
to  act.^  In  a  number  of  the  jurisdictions  the  scope  of  the 
statute  has  been  enlarged  so  as  to  embrace  actions  for  a 
failure  to  act,  as  well  as  actions  for  acts  done.^    The  act 

1  "No  rule  of  law  with  which  I  v.  Curry,  153  Cal.  418,  420,  95  Pac. 

am  acquainted  gives  countenance  887;   State  Commission  of  Lunacy 

to  the   idea  that  there   is   an   of-  v.  Welch,  154  Cal.  775,  778,  99  Pac. 

ficial  residence  of  an  executor." —  181. 
Temple,  J.,  in  Thompson  v.  Wood,  3  Id. 

115  Cal.  301,  302,  47  Pac.  50.  4  See:    COLO.— Denver  &  R.  G. 

-•  Kerr's  Cyc.  Cal.  Code  Civ.  R.  Co.  v.  Cahill,  8  Colo.  App.  158, 
Proc,  §  393,  subd.  2.  See  Thomp-  45  Pac.  285.  KAN.— Clay  v.  Hays- 
son  V.  Wood,  115  Cal.  301,  47  Pac.  rodt,  8  Kan.  74;  Fay  v.  Edminston, 
50.  28  Kan.  105;    Barton  v.  Hanauer, 

1  Kerr's  Cyc.  Cal.  Code  Civ.  4  Kan.  App.  531,  44  Pac.  1007. 
Proc,  §  393.  KY. — Daniel  v.  New  Era  Land  Co., 

2  McMillan  v.  Richards,  9  Cal.  137  Ky.  535,  126  S.  W.  108.  MINN. 
365,  420-1,  70  Am.  Dec.  655.  (This  — Tullis  v.  Brawley,  3  Minn.  277; 
case  was  decided  under  §  19,  Prac-  Hinds  v.  Backus,  45  Minn.  170,  47 
tice  Act,  which  is  substantially  re-  N.  W.  655;  State  ex  rel.  Motor 
enacted  in  the  Code  Civ.  Proc,  Drill  Co.  v.  District  Court.  92 
§  393,  given  in  the  text) ;  Bonestell  Minn.  402,  100  N.  W.  2;  Hawley  v. 

432 


eh.  XV.]  ACTIONS    AGAINST    CITIES,    ETC.  §  346 

charged  must  have  been  done  as  an  officer;  if  the  act 
complained  of  is  charged  to  have  been  done  by  defendant 
while  he  was  not  a  public  officer,  the  statute  does  not 
apply.^  If  the  act  complained  of  w^as  done  *'in  virtue  of 
his  office,"  or  under  color  of  his  office,  the  statute  applies,'' 
although  his  office  did  not  strictly  justify  the  act  done 
and  complained  of.'^ 

§  346.  Actions  against  cities,  counties  or  towns — In 
GENERAL.  In  the  absence  of  special  statutory  provisions, 
an  action  in  which  a  city,  or  a  county,  or  a  town,  or  other 
municipal  corporation  is  a  party,  is  governed  by  the  usual 
rules  of  civil  procedure ;  and  where  either  sued  in  a  wrong 
county  or  district,  appears  and  answers  without  objection 
to  the  jurisdiction,  all  objection  to  the  jurisdiction  in 
which  the  action  or  proceeding  is  commenced  is  deemed 
to  be  thereby  waived,^  and  the  right  to  a  change  of  venue- 
is  consequently  lost  ;^  but  the  officers  or  agents  of  a  munic- 
ipal corporation  can  not,  either  by  consent  or  by  an  omis- 
sion to  object,  confer  on  a  court  jurisdiction  in  an  action 
against  the  corporation,  where  the  law  has  conferred 

Scott,  123  Minn.  159,  51  L.   R.  A.  s  People  v.    Piatt,   10  N.   Y.    St. 

(N.  S.)  137,  143  N.  W.  257.  NEB.—  Rep.  577;  affirmed,  46  Hun  394,  12 

McNee  v.  Sewell,  14  Neb.  532,  16  N.  Y.  St.  Rep.  409. 

N.  W.  827;  Omaha  &  R.  V.  R.  Co.  g  Gumming  v.  Brown,  45  N.  Y. 

V.  Brown,  29  Neb.  492,  46  N.  W.  514,    6    Am.    Rep.    124;    Conley    v. 

39;    Vennum   v.    Huston,   38    Neb.  Carney,  126  App.  Div.  (N.  Y.)  337, 

293,  56  N.  W.  970;  State  v.  Hill,  38  110   N.   Y.    Supp.   528;    Murphy   v. 

Neb.  698,  57  N.  W.  548;  Herbert  v.  Callan,  69  App.  Div.   (N.  Y.)    413, 

Wortendyke,  40  Neb.  182,  68  N.  W.  74  N.  Y.  Supp.  1009. 

350;  Kyd  v.  Cortland  Exch.  Bank,  7  Brown     v.     Smith,     24     Barb. 

56  Neb.  557,  76  N.  W.  1058.  (N.  Y.)  419. 

Action    against    municipal    cor-  See  exhaustive  note  51  L.  R.  A. 

poration, — e.  g.,  a  town,  for  dam-  (N.  S.)  137-151. 

ages  for  injuries  sustained  through  i  As    to    objections    and    excep- 

negligence  of  defendant's  officers,  tions  generally,  and  waivers,  see, 

is  within  a  statute  providing  as  to  post,  §§  355-357. 

venue     in     the     case     of    actions  2  As    to    change    of    venue,    see, 

against   public    officers.— Jones    v.  post,  ch.  XVII. 

Statesville,  Town  of,  97  N.  C.  86,  a  Clarke  v.  Lyon  County,  8  Nev. 

2  S.  E.  346.  181. 

I  Code  PI.  and  Pr.— 28  433 


§346 


CODE  PLEADING  AND  PRACTICE. 


[Ft.  L 


exclusive  jurisdiction  elsewhere.^  The  general  rule  is  that 
all  actions  and  proceedings  against  cities,^  and  towns," 
and  other  municipal  corporations,'^  whether  on  contract 
or  for  tort,^  must  be  brought  in  the  county  in  which  they 
are  located,  and  that  actions  against  a  county  must  be 
brought  in  the  county  sued.''  Where  a  city  is  located 
partly  in  one  county  and  partly  in  another,  it  has  a  situs 
in  each  county,  and  may  be  sued  in  either  county,'"  al- 
though it  has  been  said  that  the  action  or  proceeding 
should  be  commenced  in  the  county  in  which  the  municipal 
offices  and  government  of  the  municipality  are  located,' ' 
when  the  action  is  not  local.'-     Where  the  statute  pro- 


4  Callahan  v.  New  York,  City  of, 
66  N.  Y.  656,  affirming  6  Daly 
(N.  Y.)  230. 

5  Jones  V.  Statesville,  Town  of, 
97  N.  C.  86,  2  S.  E.  346;  Oil  City 
V.  McAboy,  74  Pa.  St.  249;  Lehigh 
County  V.  Kleckner,  5  Watts  &  S. 
(Pa.)  181;  Potts  v.  Pittsburgh, City 
of,  14  W.  N.  C.  (Pa.)  38;  Heck- 
scher  v.  Philadelphia,  City  of,  6 
Sad.  Pa.  Cas.  346,  9  Atl.  281;  North 
Yakima,  City  of,  v.  Superior  Court, 
4  Wash.  655,  30  Pac.  1053. 

»>  Township  can  not  be  sued  in 
any  county  except  the  one  in 
which  situated. — Pack  v.  Green- 
bush  Township,  62  Mich.  122,  28 
N.  W.  746. 

"  Paris!  Vmay  be  sued  within  its 
territorial  limits  in  any  court  of 
competent  jurisdiction. — State  ex 
rel.  Police  Jury  of  St.  Martin  Par- 
ish V.  Dupre,  46  La.  Ann.  117,  14 
So.  907. 

School  district  can  not  be  sued 
outside  of  the  county  in  which 
situated. — Evans  v.  Wrightsville 
School  Dist.  (Pa.),  1  Lane.  Bar, 
Feb.  12,  1870. 

s  Heckscher  v.  Philadelphia,  City 
of,  6  Sad.  Pa.  Cas.  346,  9  Atl.  281. 


9  Johnston  v.  Cleaveland  County, 
67  N.  C.  101;  Alexander  v.  Mc- 
Dowell County,  67  N.  C.  330;  Jones 
V.  Bladen  County,  69  N.  C.  412; 
Jones  V.  Statesville,  97  N.  C.  86, 
2  S.  E.  346;  Lehigh  County  v. 
Kleckner,  5  Watts  &  S.  (Pa.)  181; 
Montague  County  v.  Meadows 
(Tex.  Civ.  App.),  31  S.  W.  694. 

County  and  others  defendant, 
latter  residing  elsewhere,  action 
must  be  brought  in  courts  of 
county  sued. — Montague  County  v. 
Meadows  (Tex.  Civ.  App.),  31 
S.  W.  694. 

Utah  Comp.  Laws  1888,  §5195, 
provides  that  certain  actions 
against  a  county  may  be  com- 
menced and  tried  in  any  county. — 
Konold  V.  Rio  Grande  W.  R.  Co., 
16  Utah  151,  51  Pac.  256. 

10  Fostoria,  City  of,  v.  Fox,  60 
Ohio  St.  340,  54  N.  E.  370;  Fox  v. 
Fostoria,  City  of,  14  Ohio  Cir.  Ct. 
Rep.  471,  8  Ohio  Cir.  Dec.  39. 

Hid. 

12  Action  for  damages  for  per- 
sonal injuries,  brought  against  a 
municipal  corporation,  is  local,  and 
must'  be  brought  in  the  county  in 
which  the  injury  occurred. — Nash- 


434 


eh.  XV.]  ACTIONS  LOCAL  TO  PLACE,  ETC.  §§  3-47,  ;348 

vides  in  what  county  a  city,  or  a  county,  or  a  town  may  be 
sued,  this  is  said  not  to  prevent  an  action  or  proceeding 
being  commenced  elsewhere,  subject  to  the  right  of  a 
change  of  venue  ;^^  but  in  Washington,  and  perhaps  else- 
where, it  has  been  held  that  a  city  can  not  be  sued  outside 
of  the  county  in  w^hich  it  is  located.^^ 

<^  347,    In  California.    In  California  an  elaborate 

statute  regulates  the  bringing  of  actions  in  which  a  city 
or  county  or  other  municipal  corporation  is  a  party,'  and 
the  same  is  true  with  regard  to  many  other  jurisdictions. 

§  348.  Actions  made  local  to  place  of  accrual.  By 
constitutional  provision  in  some  states,^  and  by  statutory 
provision  in  others,-  actions  are  made  local  to  the  place 
in  which  they  accrued.^  The  place  of  accrual  depends 
upon  the  circumstance  of  the  particular  transaction  and 
the  acts  involved.  Thus,  the  accrual  of  a  cause  of  action 
for  false  representations  in  a  land  transaction,  the  cause 
of  action  does  not  accrue  until  the  plaintiff  elects  to 
rescind,  tenders   a  reconveyance  of  the  property,   and 

ville,  City  of,  v.  Webb,  114  Tenn.  i  As  Utah  Const.,  art.  VIII,  §5. 

432,  85  S.  W.  404.  See  Campbell  v.  Rio  Grande  W.  R. 

Insufficiency  of  road  causing  per-  co.,  16  Utah  346,  52  Pac.  594; 
sonal  injuries,  action  against  a  Brown  v.  Bach,  17  Utah  435,  53 
municipality  for  damages  is  not  p^^  gg^.  condon  v.  Leipsiger,  17 
local  so  as  to  require  the  action  to  ^^^^  ^gg^  55  p^^  g2:  Hecla  Gold- 
be  brought  in  the  county  in  which  ^.^  ^^  ^  Gisborn.  21  Utah  68, 
the  action  occurred.— Hunt  V.  Pow-  ^g  p^^  g^g.  continental  Life  Ins. 
nal,  Town  of,  9  Vt.  411.  ^  j^^    Co.  v.  Jones,  31  Utah  403, 

Local  actions  against  municipaii-  gg  p^^^    229 


Cases  arising  within  jurisdiction 
only  are  controlled  by  this  pro- 
vision.— Steed  V.  Harvey,  18  Utah 
367,  72  Am.  St.  Rep.  7S9,  54  Pac. 
1011. 


ties  must  be  brought  in  the  proper 
county. — Hughart  v.  County  (Pa.), 
1  Legal  Opinions  63. 

13  Clarke  v.  Lyon  County,  8  Nev. 
181. 

14  North  Yakima,  City  of,  v.  Su- 
perior Court,  4  Wash.  655,  660,  30  -  As   in    California,    Kerr's   Cyc. 
Pac.  1053.                                                    ^^^-  ^^^^  ^^^-  ^''°^-'  §  ^^^• 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  3  Montezuma  County  Commrs.  v. 

Proc,  2d  ed.,  §  394;  Biennial  Supp.       San    Miguel    County    Commrs.,    3 
1915,  p.  3057.  Colo.  App.  137,  32  Pac.  346. 

435 


§  349  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

demands  the  return  of  the  consideration  price  paid ;  and 
the  place  where  this  offer  and  demand  are  made  is  the 
place  of  accrual  of  the  cause  of  action.^  We  have  already 
seen  that  actions  must  be  tried  in  the  county  where  the 
cause,  or  some  part  thereof,  arose,  subject  to  the  power 
of  the  court  to  change  the  place  of  trial,  where  the  same 
is  for  the  recovery  of  a  penalty  or  forfeiture  imposed  by 
statute;^  except  that,  where  it  is  imposed  for  an  offense 
committed  on  a  lake,  river,  or  other  stream  of  water,  or 
road,  situated  in  two  or  more  counties,  the  action  may  be 
brought  in  any  county  bordering  on  such  lake,  river,  or 
stream,  and  opposite  to  the  place  where  the  offense  was 
committed  f  and  that  where  the  action  is  against  a  public 
officer,  or  person  especially  appointed  to  execute  his  du- 
ties, for  an  act  done  by  him  in  \drtue  of  his  office,  or 
against  a  person  who,  by  his  command  or  in  his  aid,  does 
anything  touching  the  duties  of  such  officer,'^  but  applies 
to  his  acts  of  commission  and  not  to  his  acts  of  omission 
in  California,  although  the  rule  is  otherwise  in  some 
jurisdictions  f  but  the  statute  does  not  apply  to  officers  of 
the  federal  government.^ 

§  349.  Actions  to  be  tried  where  subject-matter  situ- 
ated— In  general.  The  California  Code  of  Civil  Pro- 
cedure provides  that  certain  actions  shall  be  tried, — stat- 
ute in  some  jurisdictions  require  that  they  shall  be  com- 
menced also, — in  the  county  in  which  the  subject-matter, 
or  some  portion  thereof,  is  situated,^  subject  to  the  right 

4  Hammond  v.  Ocean  Shore  Provision  as  to  place  of  com- 
Devel.  Co.,  22  Cal.  App.  167,  133  mencement  of  action,  applies  to 
Pac.  978.                                                      the  commencement  of  the  action, 

5  See,  ante,  §§  340,  341.  only;  it  does  not  prevent  a  change 
c  See,  ante,  §  342.  of  venue,  when  a  cause  therefor 

7  See,  ante,  §  345.  exists;    e.   g.,   the    disqualification 

8  Id.  of  the  judge  of  the  county  in  which 

9  Freeman  v.  Robinson,  7  Ind.  the  land  is  situated. — Hancock  v. 
321.  Burton,  61  Cal.  70. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  New  county  created  after  com- 

Proc,  2d  ed.,  §  392:  Consolidated  mencement  of  action, — e.  g.,  to 
Supp.  1906-1913,  p.  1422.  foreclose   a  mortgage,  —  does   not 

436 


ell.  XV.]  SITUATION   OF   SUBJECT-MATTER.  §  350 

of  a  change  of  the  place  of  trial ;-  and  a  similar  provision 
is  found  in  all  those  jurisdictions  having  a  reformed  sys- 
tem of  judicature,^  and  in  some  of  the  states, — e.  g.,  Ore- 
gon,^— actions  affecting  personal  property  are  also  in- 
cluded,^ provisions  requiring  actions  to  be  commenced  in 
the  county  of  the  location  of  the  subject-matter  of  the 
action  have  been  said  to  be  mandatory,  and  that  if  the 
action  is  not  thus  commenced  the  court  acquires  no  juris- 
diction over  the  subject-matter;^  but  the  better  doctrine 
is  thought  to  be  that,  where  action  is  commenced  in  the 
wrong  county,  the  right  to  a  trial  in  the  county  in  which 
the  subject-matter  is  situated  is  a  mere  privilege  to  be 
claimed  on  a  motion  for  the  change  of  the  place  of  trial. ^ 

§  350.  What  actions  included.  Under  the  provis- 
ions of  the  California  statute,  and  like  or  similar  statutes, 
the  following  actions  are  included :  Actions  for  the  recov- 
ery of  real  property,  or  of  an  estate  or  interest  therein, 
or  for  the  determination,  in  any  form,  of  such  right  or 
interest,  and  for  injuries  to  real  property;  actions  for  the 
partition  of  land ;  actions  for  the  foreclosure  of  all  liens 

divest   the    court   of    the    original  4  Hill's    Ann.    Code,    §  42.      See 

county  of  jurisdiction,  even  though  Moorehouse  v.  Donaca,  14  Ore.  430, 

the  land  affected,  the  subject-mat-  13  pac.  112. 

ter    of    the    action,    is    located    in  ^  ^^  ^^   personal    property,   see. 


ante,  §  334. 


another  county. — Security  Loan  & 

Trust   Co.   V.   Kauffman,    108    Cal. 

214.  41  Pac.  467.     See  Bookwater  c  Vallejo  v.  Randall.  5  Cal.  461; 

V.  Conrad.  15  Mont.  464.   39   Pac.  McLeod  v.  Ellis,  2  Wash.  117.  26 

573.   851;    Bent  v.    Maxwell   Land  Pac.  76;   State  ex  rel.  Peterson  v. 

Grant  &   R.   Co.,   3   N.   M.   227,   3  Superior   Court,   5  Wash.   639,   32 

Pac.  721.  Pac.  553. 

See,  also,  ante,  §  329.  7  Vallejo  v.  Randall,  5  Cal.  4G1; 

2  Kerr's  Cyc.  Cal.  Code  Civ.  Watts  v.  White,  13  Cal.  321,  324, 
Proc,  2d  ed.,  §  392;  Consolidated  overruling  Hennessy  v.  Nicol,  103 
Supp.  1906-1913,  p.  1422.  Cal.  138,  141,  38  Pac.  649;  Fletcher 

3  See  Roberts  v.  Roberts,  124  v.  Stowell,  17  Colo.  94,  97,  28  Pac. 
Mich.  414,  83  N.  W.  132;  Carr  v.  326;  Smith  v.  People,  2  Colo.  App. 
Lewis  Coal  Co.,  96  Mo.  149,  9  Am.  99,  105,  29  Pac.  924;  Clarke  v. 
St.  Rep.  328,  8  S.  W.  907;  State  ex  Lyon  County,  8  Nev.  186;  Elliott 
rel.  Peterson  v.  Superior  Court,  5  v.  Whitmore,  10  Utah  246,  251,  37 
Wash,  639,  32  Pac.  553.  Pac.  461. 

437 


§350 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  L 


and  mortgages  on  real  property.^  Where  the  real  prop- 
erty is  situated  partly  in  one  county  and  partly  in  an- 
other, the  plaintiff  may  select  either  of  the  counties,  and 
the  county  so  selected  is  the  proper  county  for  the  trial 
of  such  action.-  It  is  to  be  noted  that  the  statutory  re- 
quirements do  not  apply  to  actions  for  lands  lying  out  of 
the  state,=*  but  to  actions  for  the  possession  of  real  prop- 
erty within  the  state,"*  or,  for  the  determination  of  a 
right  or  interest  therein;-'^  or,  for  the  recovery  of  title 
thereto;^  or,  for  the  foreclosure  of  mortgages  thereon."^ 
We  have  already  seen  that  a  mining  claim  is  real  estate 
as  relates  to  the  jurisdiction  and  venue  in  actions  affect- 
ing the  same,^  and  hence  mining  claims  are  included  under 
this  provision  of  the  statute.''  An  action  for  the  diversion 
of  water  from  the  plaintiff's  ditch  may  be  brought  in 
either  of  the  counties  in  which  such  ditch  is  situated, 
although  the  defendant's  place  of  business  is  in  another 
county  where  the  act  complained  of  was  committed.^" 


1  See/also,  supra,  §§  323-333. 

2  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §392;  Consolidated 
Supp.  1906-1913,  p.  1422. 

Lands  situated  in  several  coun- 
ties and  an  action  is  brought  in 
one  of  the  counties  to  secure  the 
cancellation  and  annulment  of  cer- 
tain agreements  relating  to  all  the 
lands  described  in  the  complaint, 
and  to  quiet  the  title  thereto  as 
against  several  defendants,  a  dis- 
claimer as  to  the  lands  situated  in 
the  county  in  which  the  action  is 
brought  will  not  entitle  a  defen- 
dant residing  in  another  county, 
in  which  alone  he  alleges  that  he 
claims  lands  adversely  to  the 
plaintiff,  to  a  change  of  the  place 
of  trial. — Pennie  v.  Visher,  94  Cal. 
323,  29  Pac.  711. 

3  Newton  v.  Bronson,  13  X.  Y. 
587,  67  Am.  Dec.  89;  Mussina  v. 
Belden,  6  Abb.  Pr.  (N.  Y.)  165. 


4  Maris  v.  Remsen,  3  N.  Y.  Code 
R.  138. 

5  Wood  v.  Hollister,  3  Abb.  Pr. 
(N.  Y.)  14;  Starks  v.  Bates,  12 
How.  Pr.  (N.  Y.)  465. 

6  Newton  v.  Bronson,  13  N.  Y. 
587,  67  Am.  Dec,  89;  Ring  v.  Mc- 
Coun,  3  N.  Y.  Super.  Ct.  Rep.  (3 
Sandf.)  524:  affirmed,  10  N.  Y.  268: 
Wood  V.  Hollister,  3  Abb.  Pr. 
(N.  Y.)  14. 

T  Vallejo  V.  Randall,  5  Cal.  461. 

See,  ante,  §  329. 

8  See,  ante,  §  326. 

9W'atts  V.  White,  13  Cal.  321, 
325;  Hughes  v.  Devlin,  23  Cal.  501, 
506;  Buchner  v.  Malloy,  155  Cal. 
255,  100  Pac.  688. 

10  Lower  Kings  River  Water 
Ditch  Co.  v.  Kings  River  &  Fresno 
Canal  Co.,  60  Cal.  408;  People's 
Ditch  Co.  V.  Kings  River  &  Fresno 
Canal  Co.  (Cal.),  2  Pac.  45. 


438 


eh.  XV.]  ANCILLARY    ACTIONS,    ETC.  §  351 

And  a  suit  by  a  county  to  restrain  the  pollution  of  a 
water  course,  is  properly  commenced  and  tried  in  the 
county  where  the  pollution  occurs  and  the  subject-matter 
of  the  action  is  situated,  notwithstanding  the  fact  that 
the  action  is  against  a  corporation  having  its  principal 
office  and  place  of  business  in  another  county.^^ 

<^  351.  Ancillaky  and  incidental  actions.  In  the  case 
of  ancillary  and  incidental  actions  there  is  an  exception 
to  the  rule  above  laid  down,^  requiring  the  action  to  be 
commenced  and  tried  in  the  county  in  which  the  subject- 
matter  is  situated.  Thus,  the  assignee  of  a  judgment  may 
maintain  a  creditors'  suit  in  a  county  other  than  tliat  in 
which  the  judgment  assigned  was  recovered.-  In  the  case 
of  a  claim  filed  to  property  le\^ed  upon  under  execution, 
the  trial  must  be  had  in  the  county  to  which  the  execution 
is  returnable,  where  that  is  different  from  the  one  in 
which  the  property  levied  upon  is  situated  and  in  which 
the  claimant  resides.^  A  suit  in  equity,  the  main  object 
of  which  is  not  to  stay  an  action  at  law,  but  the  securing 
of  other  relief,  the  stay  of  the  proceedings  at  law  being 
merely  incidental  or  auxiliary  to  the  securing  such  other 
relief  sought,  may  be  commenced  and  tried  in  a  county 
other  than  the  one  in  which  the  judgment  at  law  was 
recovered.^  An  action  to  enjoin  the  sale,  under  an  execu- 
tion and  levy  thereon,  of  land  claimed  as  a  homestead, 
must  be  brought  and  tried  in  the  county  in  which  the 
defendant  resides,  although  that  is  not  the  county  in 
which  the  land  is  situated  or  the  county  in  which  the 
judgTuent  was  recovered.'^'  An  action  to  set  aside  and 
vacate  a  judgment,  to  vacate  and  set  aside  the  transcript 
and  docketing  of  the  judgment  in  a  county  other  than 

11  Yuba  County  v.  North  Anier-  "Aiken  v.  Peck,  (54  Ga.  (it:;. 

ican  Consol.  Gold  Min.  Co.,  12  Cal.  ■*  Lester  v.  Stevens,  29  111.  155. 

App.  223,  107  Pac.  139.  •'''  See    Fannin    County    Bank    v. 

1  See,  ante,  §§  349,  350.  Lowenstein    (Tex.    Civ.    App.),    54 

i'  Rankin  v.  Rothschild,  78  Mich.  S.  W.  316. 
10,  43  X.  W.  1077. 

439 


§  352  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

that  in  which  the  judgment  was  recovered,  and  also  to 
vacate  and  set  aside  a  levy  upon  land  situated  in  the 
latter  county,  must  be  brought  and  tried  in  the  county  in 
which  the  defendant  resides,  although  that  is  other  than 
the  county  in  which  the  judgment  was  recovered  or  the 
county  in  which  the  land  levied  upon  is  situated.^ 

§  352.  Right  to  sue  in  more  than  one  county — Elec- 
tion. There  are  instances  in  which  a  plaintiff  has  an  equal 
right  to  bring  his  action  in  two  or  more  counties,  in  which 
case  he  must  elect  in  which  county  the  action  shall  be 
brought  and  trial  had,  and  the  simple  bringing  of  the 
action  constitutes  such  election.  Thus,  we  have  already 
seen  that  when  a  city  is  situated  in  two  counties,  it  may 
be  sued  in  either  county.^  A  cause  of  action  arising  in 
one  county  and  the  sole  defendant  residing  in  another 
county,  action  may  be  brought  in  either  county.-  An 
action  on  a  vendor's  lien  to  recover  the  purchase  price 
of  land  sold,  may  be  brought  in  the  county  in  which  the 
land  lies  or  in  another  county.^  An  action  to  abate  a 
public  nuisance  to  lands  situated  partly  in  one  county  and 
partly  in  another,  may  be  brought  in  either  county  :^  Thus, 
where  a  railroad  places  deleterious  substances  in  a  flow- 
ing stream  in  A  county,  and  suffers  them  to  float  on  the 
stream  into  B  county,  an  action  may  be  maintained  in 
the  latter  county.^  An  action  to  foreclose  a  mortgage,  or 
other  lien,  on  lands  situated  in  two  or  more  counties,  may 
be  brought  in  either  county  in  which  a  part  of  the  land  is 
situated,  regardless  of  the  residence  of  the  mortgagee:^ 
Thus,  where  mortgaged  land  situated  in  one  county  is 
released  and  a  deed  executed  to  the  mortgagee  of  lands 

6  state  ex  rel.  Child  v.  District  -i  McClatchy    v.    Laguna    Lands, 

Court,  85  Minn.  283,  88  N.  W.  755.  Limited,  32  Cal.  App.  718,  164  Pac. 

1  See,  ante,  §  346.  41. 

■2  Danser  v.  Dorr,  72  W..Va.  430,  r,  Com.  v.  Louisville  &  N.  R.  Co., 

78  S.  E.  367.  175  Ky.  267,  194  S.  W.  345. 

3  Samuel   v.  Allen,   98    Cal.   406,  o  Hendrix  v.  Nesbitt,  96  Ky.  652, 

33  Pac.  273.  29  S.  W.  627. 

440 


cll.  XV.]  ACTION  IN   MORE  THAN  ONE   COUNTY.  §  352 

situated  in  another  county,  as  security  in  lieu  of  the 
released  land,  foreclosure  may  be  brought  in  either 
county,  the  same  as  though  the  deeded  lands  had  been 
included  in  the  original  mortgage."^  An  action  to  recover 
real  property  situated  in  two  or  more  counties,  may  be 
brought  in  any  county  in  which  a  part  of  the  land  is 
situated.^  An  action  to  vacate  and  set  aside,  on  the 
ground  of  fraud,  a  judgment  establishing  lieirship,  and  to 
establish  the  right  of  the  plaintiff  as  an  heir,  where  the 
estate,  consisting  of  land  and  moneys,  has  not  yet  been 
distributed,  although  a  ''mixed  action,"  should  be  brought 
in  the  county  in  which  the  land  is  situated,  rather  than 
in  the  county  in  which  the  defendant  resides.*^  Boundaiy 
of  real  estate  being  the  subject  of  litigation,  and  the  true 
boundary  line  being  the  dividing  line  between  two  coun- 
ties, the  action  may  be  brought  in  either  county.^*'  Ferry 
company  operating  between  two  counties  violating  its 
franchise,  action  may  be  brought  in  either  county.^^ 
Wrongful  diversion  of  water  in  one  county  which  causes 
injury  to  plaintiff's  rights  in  another  county,  suit  may  be 
maintained  in  either  county:^-  Thus,  where  an  irrigation 
canal  extends  in  or  through  A  county  and  B  county,  an 
action  for  wrongful  diversion  in  A  county  may  be  main- 
tained in  either  county  ;^^  and  where  a  trespass  is  charged 
to  have  been  committed  upon  the  real  property  of  a  water 
company,  committed  at  its  source  of  supply  in  one  county, 
and  resulting  in  injury  to  its  real  property  in  another 
county,  in  which  latter  county  the  company  furnishes 

7  Hilt  V.  Griffin,  77  Kan.  783,  90  n  Jefferson    Parish    Police   Jury 

Pac    808.  '^'-  Westwego  &  Walnut  St.  Ferr.v 


8  Kimball  v.  Tripp,  136  Cal.  631, 
69  Pac.  428. 


Co.,  131  La.  430,  59  So.  862. 

12  Desert  Trr.  Co.  v.  Mclnt.vre.  IG 
Utah  398,  52  Pac.  628. 
0  Roach  V.  Whalen,  22  Cal.  App.  in  Lower     Kings     River     Water 

508,  135  Pac.  57,  following  Sloss  v.  Ditch  Co.  v.  Kings  River  &  Fresno 
De  Toro,  77  Cal.  129,  19  Pac.  233.  c^^al  Co.,  60  Cal.  408,  followed  in 
See  Acker  v.  Leland,  96  N.  Y.  383.  People's  Ditch  Co.  v.  Kings  River 
loCoddo  Parish  v.  De  Soto  Par-  &  Fresno  Canal  Co.  (Cal.),  2  Pac. 
ish,  114  La.  370,  38  So.  274.  45. 

Ml 


§  353  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

water,  the  water  company  may  bring  its  action  for  relief 
in  the  latter  county.^*  But  where  obstructions  are  placed 
in  a  private  way,  some  of  which  obstructions  are  situated 
in  one  county  and  some  of  them  in  another  county,  actions 
must  be  brought  in  both  counties,  the  courts  of  each 
county  being  without  jurisdiction  to  order  the  removal 
of  the  obstructions  in  the  other  county.^^ 

§  353.    Joinder    of    causes    suable    in    different 

COUNTIES.  Where  two  or  more  causes  of  action,  which  are 
each  suable  in  different  counties,  are  properly  joined  in 
the  complaint,  the  action  may  be  commenced  and  the  cause 
tried  in  any  county  in  which  an  action  might  have  been 
maintained  upon  either  cause  of  action  thus  joined  ;^  but 
it  is  different  in  those  cases  in  which  the  causes  of  action 
are,  under  the  provisions  of  the  system  of  judicature, 
improperly  joined.  Thus  it  has  been  said  that  where  the 
complaint  sets  out  a  cause  of  action  on  two  counts  based 
upon  an  open  account,  upon  which  the  defendant  is  en- 
titled, under  the  statutory  provision,  to  a  trial  in  the 
county  of  his  residence,  the  plaintiff  can  not  defeat  that 
right  by  joining  therewith  a  third  count  founded  upon 
contract,  the  cause  of  action  as  to  which  count  is,  under 
the  statute,  triable  in  the  county  in  which  the  contract  was 
required  to  be  performed.-  In  such  a  case  the  joinder  of 
the  count  founded  upon  contract  with,  the  counts  founded 
upon  open  account  was  a  manifest  misjoinder  under  the 
reformed  system  of  judicature  because  the  cause  of  action 
on  the  first  two  counts  and  the  cause  of  action  upon  the 
third  count  were  not  triable  in  the  same  jurisdiction.   The 

14  Yolo    Consol.    Water    Co.    v.      v.  Emigrant  Ditch  Co.,  129  Cal.  227, 

Adamson,    22    Cal.    App.    493.    136      61  Pac.  960. 

„     ^  ,,      .         _  „.  isMarchman  v.  Brown,  143  Ga. 

Pac.    48,    following    Lower    Kings      ^^^   ^^  ^   ^  ^^ 

River  Water   Ditch   Co.    v.   Kings  ^  international  &  G.  N.  R.  Co.  v. 

River  &  Fresno  Canal  Co.,  60  Cal.  Anderson  County  (Tex.  Civ.  App.). 
408;   Drinkhouse  v.  Spring  Valley      150  S.  \V.  239. 

Water  Co.,  80  Cal.  308,  22  Pac.  252.  -2  Bond  v.  Hurd,  31  Mont.  314,  3 

and  Last  Chance  Water  Ditch  Co.      Ann.  Gas.  566,  78  Pac.  579. 

442 


eh.  XV.]  LAYING    VENUE.  §354 

joining  of  a  real  with  a  personal  action  destroys  the  local 
character  of  the  real  action  and  makes  the  consolidated 
action,  in  its  nature,  transitory  and  triable  in  the  county 
of  the  residence  of  the  defendant,  only  ;^  a  count  charging 
trespass  upon  land  and  cutting  trees^  belonging  to  the 
plaintiff,  whereby  the  defendant  became  indebted  to  the 
plaintiff  in  the  value  of  the  trees,  is  improperly  joined 
with  a  further  count  seeking  to  recover  treble  damages, 
under  the  statute  relating  to  trespass  upon  land,  and 
destroys  the  court's  jurisdiction;^  the  cause  of  action 
declared  on  in  the  first  count  being  transitory,*'  and  that 
declared  on  in  the  second  being  local. '^ 

§  354.  Laying  venue.  The  treatment  of  the  matter  of 
laying  the  venue  in  civil  actions, — that  is  to  say,  stating 
the  county  or  locality  in  which  the  cause  of  action  tran- 
spired or  the  subject-matter  of  the  action  is  situated, — 
does  not  properly  fall  within  the  scope  of  this  part  of  the 
present  treatise,  but  will  be  found  fully  developed  in 
Part  IV,  dealing  with  the  Pleadings  in  Ci\dl  Actions. 
Suffice  it  to  say  in  this  place  that,  as  to  transitory  actions,^ 
venue  is  not  required  to  be  laid,  further  than  to  indicate 
the  place  of  trial ;-'  but  in  local  actions,^  being  important 
and  traversable,  should  be  laid."* 

■■•>  Smith  V.  Smith,  88  Cal.  572,  26  2  Jordan  v.  Brown,  71  Iowa  421. 

Pac.  356.  32  N.  W.  450;  McKenna  v.  Flsk,  42 

See,  also,  ante,  §  33.-],  where  this  U.  S.  (1  How.)  241,  248,  11  L.  Ed. 

question  is  fully  discussed  and  the  .117,  120. 

authorities  cited.  •"?  See,   ante,    §§  320,   321,    323    et 

■i  As   to   action    for   trespass    on  seq. 

land,  cutting  trees,  etc.,  see,  ante,  -t  Campbell  v.  West.  86  Cal.  197. 

§330.  24  Pac.  1000;   Chicago  &  S.  E.  R. 

r.  McLeod  v.  Ellis,  2  Wash.   117.  Co.   v.  Wheeler,   14   Ind.   App.   64. 

26  Pac.  76.  42  N.  E.  489;  Blackstone  Nat.  Bank 

'1  See.  ante,  §  330,  footnotes  4  and  v.  Lane,  80  Me.  165,  13  Atl.  683; 

5;  post,  §  354,  footnote  2.  Baltimore    &    Y.    Turnp.    Road    v. 

7  See,   ante,    §§320,   321,   323    et  Crowthers,  63  Md.  558,  1  Atl.  379; 

seq.     See  Kentucky  Land  &  Coal  Omaha  &  R.  V.  R.  Co.  v.  Brown, 

Co.  V.  Mineral  Devel.  Co.,  191  Fed.  29    Neb.    492,    502.    46    N.    W.    39; 

916,  917.  United  States  v.  Woolsey,  6  Betts, 

1  See,  ante,  §§  320,  322.  D.  C.  MSS.  50,  Fed.  Cas.  No.  16762. 

413 


§§355,356  CODE  pleading  and  practice.  [Pt.  I, 

§  355.  Objections  and  exceptions — In  general.  At 
common  law,  in  transitory  actions,  the  plaintiff  could  lay 
the  venue  in  any  county  he  desired,^  but  in  local  actions 
he  was  required  to  lay  the  venue  truly  f  and  a  mistake  in 
venue,  or  a  want  of  venue,  was  taken  advantage  of  by 
special  demurrer,^  or  on  the  trial  by  a  motion  for  a  non- 
suit.^ In  this  country  the  matter  of  the  method  of  taking 
advantage  of  such  defects  depends  largely  upon  (1)  statu- 
tory provisions  regulating  practice  and  procedure  and  (2) 
upon  the  doctrine  in  the  particular  jurisdiction  regarding 
the  nature  of  venue  ;^  but  objection  to  the  venue  is  usually 
raised:  (1)  Where  the  defect  appears  upon  the  face  of 
the  pleading,  as  at  common  law,  by  special  demurrer; 
(2)  where  the  defect  does  not  appear  upon  the  face  of  the 
pleading,  by  a  plea  in  abatement  or  by  answer,  and,  by 
statutory  provision  in  Texas,  by  a  *'plea  of  privilege." 

§  356.    In  California.     In  California  and  also  in 

most,  if  not  all,  the  states  having  the  reformed  system  of 
judicature,  a  mistake  in  the  venue  is  taken  advantage  of 
by  a  motion  for  a  change  in  the  place  of  trial  to  the  proper 
county,^  except  in  those  cases  in  which  the  place  of  com- 
mencement of  an  action  prescribed  by  the  statute  is  man- 
datory and  must  be  complied  with  in  order  to  confer  upon 
the  court  jurisdiction  over  the  subject-matter  of  the  ac- 

1  Stephen  on  Pleading  (5th  Eng.  People,  2  Colo.  App.  99,  105,  29 
Ed.),  p.  324.                                           ,  Pac.  924;   Gunnison  County  v.  Sa- 

2  Id.  guache  County,  2  Colo.  App.  412, 

3  1  Chitty  on  Pleading  (16th  Am.  31  Pac.  183;  Wasson  v.  Hoffman, 
Ed.),  p.  289.  4  Colo.  App.  491,  36  Pac.  445;  Den- 

4  Id.,  p.  290.  ver   &   R.   G.   R.   Co.   v.   Cahill,   8 

5  See  Globe  Accident  Ins.  Co.  v.  Colo.  App.  158,  45  Pac.  285.  IND. 
Reid,  19  Ind.  App.  203,  47  N.  E.  TR.— Graham  v.  Stowe,  1  Ind.  Tr. 
947,  49  N.  E.  291.  405,   37   S.  W.   837.     IOWA— Gold- 

1  CAL..— Reyes  v.  Sanford,  5  Cal.  smith  v.  Wilson,  67  Iowa  662,  25 

117;  Pearkes  v.  Freer,  9  Cal.  642;  N.  W.  870;    Marquardt  v.  Thomp- 

Watts  V.  White,  13  Cal.  321;  Herd  son,   78   Iowa  158,   42  N.  W.    634. 

V.  Tuohy,  133  Cal.  55,  65  Pac.  139.  MONT,— State    ex    rel.    Gnose    v. 

COLO.— Fletcher    v.     Stowell,     17  District   Court,    30    Mont.    188,    75 

Colo.    94,    28    Pac.   326;    Smith   v.  Pac.  1109;   State  ex  rel.  Schatz  v. 

444 


eh.  XV.] 


OB.IECTIOXS — ESTOPPEL,    ETC. 


§  357 


tion.-  This  right  to  a  change  of  the  place  of  trial  to  the 
proper  county  is  an  absolute  one,  and  the  change  must  be 
made,  on  timely  application  duly  made  therefor.^ 


§  357. 


Estoppel  and  waiver.  Under  the  California 


statute,  requiring  certain  specified  action  to  be  com^ 
menced  in  designated  counties,  a  failure  to  commence  one 
of  such  actions  in  the  county  designated  does  not  affect 
the  jurisdiction  of  the  court  in  which  the  action  is  com- 
menced,^ because  an  action  can  be  commenced  and  tried 
in  any  county  in  the  state.-  If  the  county  in  which  an 
action  is  commenced  is  not  the  proper  county  for  the  trial 
thereof  under  the  statute,  the  defendant,  by  filing  an 
affidavit  of  merits^  at  the  time  he  files  his  answer  or 
demurrer,  and  demanding,  in  writing,  a  change  of  the 


District  Court,  40  Mont.  173,  105 
Pac.  554.  NEV.— Williams  v.  Kel- 
ler, 6  Nev.  144;  Clarke  v.  Lyon 
County,  8  Nev.  181,  186.  UTAH— 
Elliott  V.  Whitmore,  10  Utah  246, 
251,  37  Pac.  461. 

2  See  Herd  v.  Tuohy,  133  Cal. 
55,  59,  65  Pac.  139. 

See,  also,  ante,  §§  323  et  seq. 

Failure  to  object  to  jurisdiction 
of  court  in  action  involving  in- 
juries to  land  brought  in  a  county 
other  than  the  one  in  which  the 
land  is  situated,  does  not  confer 
jurisdiction  on  the  court  in  which 
the  action  is  commenced,  under 
the  Washington  statute. — McLeod 
V.  Ellis,  2  Wash.  117,  26  Pac.  76. 

3  Watts  V.  White,  13  Cal.  321; 
McSherry  v.  Pennsylvania  Consol. 
Gold  Min.  Co.,  97  Cal.  637,  641,  32 
Pac.  711;  Herd  v.  Tuohy,  133  Cal. 
55,  60,  65  Pac.  139;  Wallace  v. 
Owsley,  11  Mont.  219,  221,  27  Pac. 
790;  Williams  v.  Kelly,  6  Nev.  144; 
Clarke  v.  Lyon  County,  8  Nev. 
181,  186;  Small  v.  Gilruth,  8  S.  D. 
287,  290,  66  N.  W.  452. 


Suing  association  and  individ- 
uals, individual  defendants  entitled 
to  have  trial  of  action  removed  to 
county  of  their  residence;  by  so 
suing  plaintiff  waives  his  right  to 
have  cause  tried  in  county  in 
which  the  breach  of  contract  oc 
curred. — Nelson  v.  East  Side  Gro- 
cery Co.,  26  Cal.  App.  344,  140 
Pac.  1055. 

1  Herd  v.  Tuohy,  133  Cal.  55,  59. 
65  Pac.  139;  Fletcher  v.  Stowell, 
17  Colo.  94,  28  Pac.  326;  Gunnison 
County  Commrs.  v.  Saguache 
County  Commrs.,  2  Colo.  App.  412, 
31  Pac.  183;  Wasson  v.  Hoffman, 
4  Colo.  App.  491,  36  Pac.  445; 
Smith  v.  Morrill,  12  Colo.  App.  233. 
55  Pac.  824. 

2  See,  ante,  §  319.  See  Grocers' 
Fruit  Growing  Union  v.  Kern 
County  Land  Co.,  150  Cal.  466, 
475-6,  89  Pac.  120. 

3  Form  of  affidavit  of  writs,  see 
Jury's  Adjudicated  Forms  of  Plead- 
ing and  Practice,  vol.  2,  p.  1815, 
Forms  Nos.  1099,  1100, 

415 


§357 


CODE  PLEADING  AND  PRACTICE. 


[Ft.  1. 


place  of  trial,*  may,  on  motion,''  have  the  trial  transferred 
to  the  proper  county.*'  The  right  to  have  an  action  tried 
in  a  particular  county  is  a  mere  personal  privilege  of  the 
defendant  in  California  and  jurisdictions  \vith  a  like 
statute,"  which  privilege  may  be  waived  either  expressly 
or  by  implication  f  and  where  an  application  is  not  made; 
for  a  change  of  the  place  of  trial  to  the  proper  county  in 
due  season,''  and  in  the  proper  form  under  the  statute,^" 
objection  on  account  of  the  action  having  been  commenced 
in  the  wrong  county  is  deemed  to  be  waived,^ ^  and  the 
defendant  will  be  thereafter  estopped  to  raise  it  by  niov- 


4  Form  of  demand  for  change  of 
place  of  trial,  see  Id.,  p.  1814, 
Form  No.  1097. 

"i  Form  of  motion  for  change  of 
place  of  trial,  see  Id.,  p.  1814, 
Form  No.  1096. 

<«  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §396;  Consolidated 
Supp.  1906-1913,  p.  1427.  See  Herd 
V.  Tuohy,  133  Cal.  55,  60,  65  Pac. 
139. 

See,  also,  ante,  §  356. 

T  Burton  v.  Graham,  36  Colo. 
199,  84  Pac.  978;  White  v.  Rio 
Grande  W.  R.  Co.,  25  Utah  346,  71 
Pac.  593. 

X  Pearkes  v.  Freer,  9  Cal.  642; 
Watts  V.  White,  13  Cal.  321;  Jones 
V.  Frost,  28  Cal.  245,  246;  Cook  v. 
Pendergast,  61  Cal.  72,  75,  79; 
Hearne  v.  De  Young,  111  Cal.  373, 
376,  43  Pac.  1108;  Smith  v.  Pelton 
Water  Wheel  Co.,  151  Cal.  399, 
401,  90  Pac.  932;  Clarke  v.  Lyon 
County,  8  Nev.  181,  186. 

0  "At  or  before  filing  demurrer," 
is  the  holding  in  Pearkes  v.  Freer, 
9  Cal.  642. 

"At  the  earliest  opportunity,"  is 
said  to  be  the  uniform  rule,  in 
Smith  V.  Pelton  Water  Wheel  Co., 
151  Cal.  399,  401,  90  Pac.  932. 


"Being  dilatory,  such  motion 
must  be  prosecuted  with  dili- 
gence," and  "if  defendant  relies 
on  the  fact  that  the  action  is 
brought  in  the  wrong  county,  he 
ought  to  move  for,  or  at  least  de- 
mand, a  transfer  on  his  first  ap- 
pearance in  the  cause,"  is  said  in 
Cook  V.  Pendergast,  61  Cal.  79. 

Failure  for  ^ore  than  eighty 
days  after  entering  appearance  to 
move  for  a  change  of  venue  to 
proper  county  is  fatal  to  right  to 
change  of  venue. — Burton  v.  Gra- 
ham, 36  Colo.  199,  84  Pac.  978. 

Trial  on  merits  had,  objection 
can  not  be  taken. — Johnston  v. 
Wadsworth,  24  Ore.  494,  34  Pac. 
13. 

10  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §396;  Consolidated 
Supp.  1906-1913,  p.  1427. 

11  Herd  v.  Tuohy,  133  Cal.  55, 
60,  65  Pac.  139;  Smalley  v.  Peck- 
ham  Co.  (George  C),  175  Cal.  146, 
165  Pac.  438;  Burton  v.  Graham, 
36  Colo.  199,  84  Pac.  978;  John- 
ston V.  Wadsworth,  24  Ore.  494, 
34  Pac.  13;  White  v.  Rio  Grande 
W.  R.'  Co.,  25  Utah  346,  71  Pac. 
593. 


446 


ch.  XV.] 


OBJECTIONS WAIVER,    ETC. 


§  357 


ing  for  a  change  of  the  place  of  trial. ^-  Thus,  it  has  been 
held  that  application  for  a  change  of  the  place  of  trial  to 
the  proper  county  will  come  too  late  after  demurrer  to  the 
complaint  or  to  the  amended  complaint  ;^^  after  answer 
to  the  merits  ;^^  seven  months  after  denial  of  a  similar 
motion  ;^^  and  after  trial  on  the  merits.^^  Subsequent 
change  of  the  place  of  trial  to  the  proper  county,  before 
answer,  cures  the  defect  and  avoids  the  objection. ^'^ 


12  Herd  v.  Tuohy,  133  Cal.  55, 
60,  65  Pac.  139. 

13  Jones  V.  Frost,  28  Cal.  245, 
246;  Cook  v.  Pendergast,  61  Cal. 
72;  Templeton  v.  Lloyd,  59  Ore. 
52,  115  Pac.  1068;  Scott  v.  Hoover, 
99  Fed.  248. 

Application  made  at  time  of  de- 
murrer can  not  be  by  the  court 
postponed  until  the  answer  is 
filed.— Heald  v.  Hendy,  65  Cal.  621, 
622,  4  Pac,  27. 


14  Clarke  v.  Lyon  County,  8  Nev. 
181,  186. 

Divorce  case,  defendant  does  not 
waive  right  to  demand  change  of 
venue,  on  ground  of  convenience 
of  witnesses,  by  answering. — 
Sheckles  v.  Sheckles,  3  Nev.  404, 
406. 

15  Smith  v.  Pelton  Water  Wheel 
Co.,  151  Cal.  399,  401,  90  Pac.  933. 

16  Johnston  v.  Wadsworth,  24 
Ore.  494,  34  Pac.  13. 

17  Weiss  V.  Bethel,  8  Ore.  522, 


447 


CHAPTER  XVI. 

PLACE  OF  TRIAL AS  DETERMINED  BY  DOMICILE  OR  RESIDENCE 

OF  PARTIES. 

§  358.  In  general. 

§  359.  In  California. 

§  360.  As  to  rights  of  plaintiffs — In  general. 

§  361.  Co-plaintiffs. 

§  362.  Right  to  sue  in  different  counties — Election. 

§  363.  As  to  rights  of  defendants — In  general. 

§  364.  Makers  and  indorsers :  Principals  and  sureties. 

§  365.  Materiality  of  resident  defendant. 

§  366.  Misjoinder — In  general. 

§  367. Dismissal  as  to  resident  defendant. 

§  368.  Joinder  of  real  and  personal  actions. 

§369.  "Domicile"  or  "residence"  for  purposes  of  action — In 
general. 

§  370.  In  California. 

§  371.  In  other  states. 

§  372.  Of  corporation — In  general. 

§  373 In  California. 

§  374. In  other  states — Colorado. 

§  375. Idaho. 

§  376. Nebraska. 

§377. Oregon. 

§378. South  Dakota. 

§379. Utah. 

§  380. Washington. 

§  381.  Nonresident  and  absconding  defendants — In  generaL 

§  382.  A  nonresident  plaintiff. 

§  383. Illustrations  of  doctrine. 

§  384.  California  doctrine. 

§  385.  Foreign  corporations. 

§  386. Illustrations  of  prevailing  doctrine. 

§  387.  Objections  and  exceptions — In  general. 

§  388.  Estoppel  and  waiver. 

448 


en.  XVI.]  TRIAL  AT   DOMICILE.  §§  358,  359 

<§,  358.  In  general.  We  have  already  seen  that,  at  com- 
mon law,^  in  the  case  of  transitory  actions,-  the  venue 
might  be  laid  in  any  county  the  plaintiff  might  select  for 
that  purpose.^  In  this  country,  in  almost  if  not  quite  all 
the  jurisdictions,  and  in  all  jurisdictions  with  a  reformed 
judicature,  the  matter  of  the  venue  in  residentiary^  actions 
is  regrilated  entirely  by  statute  of  the  particular  jurisdic- 
tion, wliich  must  be  consulted  and  followed.  The  general 
rule  may  be  said  to  be  that  the  trial  may  be  had  in  any 
county  in  which  the  parties,  or  any  one  of  them,  reside  at 
the  time  of  the  commencement  of  the  action ;  although  a 
large  number  of  the  jurisdictions  require  that  the  action 
shall  be  commenced  and  the  trial  had  in  the  county  in 
which  the  defendant,  or  one  of  the  defendants,  reside  at 
the  time  of  the  commencement  of  the  action. 

§  359.    In  Californl^..    By  statutory  provision  in 

California,^ — and  the  same  is  true  in  a  large  number  of 
jurisdictions  having  the  reformed  system  of  judicature, — 
rJl  the  actions  not  provided  for  otherwise,  as  discussed  in 
detail  in  the  preceding  chapter,  must  be  tried  in  the  county 
in  which  the  defendants,  or  some  of  them,  reside  or  are 
domiciled  at  the  time  of  the  commencement  of  the  action, ^ 

1  See,  ante,  §§  180,  210.  of,  97  Cal.  135,  31  Pac.  845;  Bailey 

2  As  to  transitory  actions,  see,  v.  Cox,  102  Cal.  333,  36  Pac.  650; 
ante,  §§  320,  322.  Brady    v.    Times-Mirror    Co.,    106 

3  See  1  Chitty  on  Pleading  (16th  Cal.  56,  39  Pac.  209;  White  v. 
Am.  Ed.),  p.  282;  Stephen  on  Adler,  5  Cal.  Unrep.  215,  42  Pac. 
Pleading,  p.  325.  1070;   Bonestell  v.  Curry,  153  Cal. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  418,  420,  95  Pac.  887;  Anaheim  Odd 
Proc,  2d  ed.,  §395;  Consolidated  Fellows'  Hall  Assoc,  v.  Mitchell,  6 
Supp.  1906-1913,  p.  1425.  Cal.  App.  431,  92  Pac.  331;   Krogh 

2  ALA. — Montgomery  Iron  Works  v.  Pacific  Gateway  &  Devel.  Co.,  11 
V.  Eufaula  Oil  &  Fertilizer  Co.,  110  Cal.  App.  237,  104  Pac.  698.  COLO. 
Ala.  395,  20  So.  300.  GA.— Jordan  —Price  v.  Lucky  Fork  Gold  Min. 
V.  Jordan,  16  Ga.  446.  CAL.— Loehr  Co.,  56  Colo.  163,  136  Pac.  1021. 
V.  Latham,  15  Cal.  418;  Armstrong  MINN.— Smith  v.  Barr,  76  Minn. 
V.  Superior  Court,  63  Cal.  410;  Ah  513,  79  N.  W.  507.  MONT.— Mc- 
Fong  V.  Sternes,  79  Cal.  30,  21  Pac.  Donnell  v.  Collins,  19  Mont.  372, 
381;  Smith  v.  Smith,  88  Cal.  572,  48  Pac.  549;  State  ex  rel.  Schatz 
26  Pac.  356;  Buck  v.  Eureka,  City  v.  District  Court,  40  Mont.  173,  105 

I  Code  PI.  and  Pr.— 29  449 


§  360  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

with  an  exception  in  those  cases  in  which  none  of  the 
defendants  are  residents  of  the  state,^  and  also  in  those 
cases  in  which  the  action  is  (1)  for  an  injury  to  the  person 
or  property,  (2)  for  death  from  wrongful  act,  or  (3)  for 
damages  for  injuries  from  negligence;^  in  either  of  which 
latter  cases  the  trial  may  be  had  in  the  county  in  which 
the  act  or  injuries  complained  of  occurred,'^  even  in  those 
cases  in  which  the  defendant  is  a  private  corporation/' 
Under  those  statutes  which  provided  that  the  defendant 
shall  be  sued  or  the  trial  had  in  the  county  in  which  he 
resides  or  has  his  domicile,"^  the  defendant's  right  is  not 
a  technical  one,  but  a  substantial  one  of  importance,  which 
is  not  to  be  taken  away  except  in  strict  compliance  with 
the  law.^ 

§  360.     As  TO  RIGHTS  OF  PLAINTIFFS In  GENERAL.      Ill   a 

number  of  the  jurisdictions  having  the  reformed  system 
of  judicature,  and  especially  in  those  jurisdictions  follow- 
ing the  provisions  of  the  New  York  Code  of  Civil  Pro- 
cedure regulating  the  venue  in  the  residentiary  class  of 
actions,  an  action  belonging  to  this  class  of  actions  is  to 
be  brought  in  the  county  of  the  residence  or  domicile  of 

Pac.    554.     N.   M.— Oeck  v.   Shep-  4  Kerr's     Cyc.     Cal.     Code    Civ. 

herd,  1  N.  M.  346.     OKLA.— Hen-  Proc,  2d  ed.,  §395;    Consolidated 

nessey  First  Nat.  Bank  v.  Hesser,  Supp.  1906-1913,  p.  1425. 

14  Okla.  115,  77  Pac.  36;  Burke  v.  ^  j^ 

Malaby,  14  Okla.  650,  78  Pac.  105; 

-.     ,,.  „.        -n  /^i,i„    coQ    Qi  6  As  to  corporations  defendants, 

Mouldin  V.  Rice,  19  Okla.   589,  91  '^ 

Pac.  1032.    UTAH— Konold  v.  Rio  ^ee,  post,  §§  372.  385,  386. 

Grande  W.  R.  Co.,  16  Utah  151,  51  "'  As  to  domicile  or  residence  for 

Pac.  256;  Snyder  v.  Pike,  30  Utah  the    purposes    of    an    action,    see, 

102,  83  Pac.  692.  post,  §§  369-380. 

Action    for    conversion    of    per-  8  Jacobson  v.  Hosmer,  76  Mich. 

sonal  property  on  substitution  of  234   42  N  W   1110 


Statute    authorizing    suit    in 


party  claiming  the  property,  trial 
to  be  had  in  county  where  substi- 
tuted defendant  resides.-Price  v.  county  other  than  that  of  resi- 
Lucky  Fork  Gold  Min.  Co.,  56  Colo.  dence  of  defendant,  applies  to  pro- 
163  136  Pac.  1021.  t>ate  courts  exercising  the  jurisdic- 
3  As  to  nonresident  defendants,  tion  In  actions  at  law. — Cody  v. 
see,  post,  §§  381  et  seq.  Raynaud,  1  Colo.  272. 

450 


ch.  XVI.] 


RIGHTS    OF   PLAINTIFF    AS   TO   TRIAL 


§360 


the  parties,  or  of  either  of  them,  at  the  time  of  the  com- 
mencement of  the  action.^  Under  such  statutes  the  plain- 
tiff has  a  right  to  an  election-  in  which  county  he  will 
bring  his  action,  where  the  parties  reside  in  different 
counties;^  and  where  the  plaintiff  resides  in  the  county 
in  which  the  action  is  commenced  a  motion  to  change  the 
place  of  trial  to  another  county,  on  the  ground  that  the 
venue  is  improperly  laid,  is  unsustainable.*  In  the  case 
of  an  action  for  a  divorce,  brought  by  a  wife  living  sepa- 
rate and  apart  from  her  husband,  for  his  fault,  the  pro- 
ceeding may  be  commenced  in  the  county  in  which  the 
plaintiff  wife  resides,  although  that  comity  is  not  the 


1  New  York  Code  of  Civil  Pro- 
cedure 1848,  §  104;  see  present 
§  984.  See:  COLO.— Thomas  v. 
Colorado  Nat.  Bank,  11  Colo.  511, 
19  Pac.  501;  Denver  &  Rio  Grande 
R.  Co.,  8  Cal.  App.  158,  45  Pac.  285. 
M  I  C  H.— Atkins  v.  Borstter,  46 
Mich.  552,  9  N.  W.  850.  MO.— 
Chouteau  v.  Allen,  70  Mo.  290; 
Thompson  v.  Bronson,  17  Mo.  App. 
456;  Allen  v.  St.  Louis,  I.  M.  &  S. 
R.  Co.,  38  Mo.  App.  294.  MONT.— 
Yore  v.  Murphy,  10  Mont.  304,  25 
Pac.  1039.  N.  Y.— Zeimer  v.  Raf- 
ferty,  18  App.  Div.  397,  46  N.  Y. 
Supp.  345;  Shepard  &  M.  Lumber 
Co.  v.  Burleigh,  27  App.  Div.  99, 
50  N.  Y.  Supp.  135;  Hirshklnd  v. 
.Mayer,  91  App.  Div.  416,  86  N.  Y. 
Supp.  836;  Hislop  v.  Taaffe,  141 
App.  Div.  40,  125  N.  Y.  Supp.  614; 
Talmadge  v.  Third  Nat.  Bank,  27 
Hun  61;  affirmed,  91  N.  Y.  531; 
Gorman  v.  South  Boston  Iron  Co., 
32  Hun  71;  Rossie  Iron  Works  v. 
Westbrook,  59  Hun  345,  13  N.  Y. 
Supp.  141;  Shepard  v.  Squire,  76 
Hun  598,  23  N.  Y.  Civ.  Proc.  Rep. 
403,  28  N.  Y.  Supp.  218;  Banks  v. 
Selden,  13  How.  Pr.  163;  Cincin- 
nati, H.   &   D.  R.   Co.   v.  Ives,   21 


N.  Y.  St.  Rep.  67,  3  N.  Y.  Supp. 
895.  N.  C— Wood  v.  Morgan,  118 
N.  C.  749,  24  S.  E.  522. 

Action  on  note,  in  Colorado,  tri- 
able in  county  where  payable 
under  Code  Civ.  Proc,  §  1S83,  but 
where  suit  is  brought  in  the 
county  of  the  plaintiff's  residence, 
although  the  defendant  resides 
and  the  note  is  payable  in  another 
county,  where  the  defendant  elects 
to  stand  upon  the  question  of  jur- 
isdiction and  defaults,  a  default 
judgment  may  be  entered  against 
him  in  the  county  where  action 
brought. — Thomas  v.  Colorado  Nat. 
Bank,  11  Colo.  511,  19  Pac.  501. 

— I  n  Oregon  suit  must  be 
brought  and  the  action  tried  in  the 
county  of  the  defendant's  resi- 
dence.— Dunham  v,  Shindler,  17 
Ore.  256,  20  Pac.  326. 

2  As  to  right  to  sue  in  more  than 
one  county,  see,  post,  §  362. 

3  See  Talmadge  v.  Third  Nat. 
Bank,  27  Hun  (N.  Y.)  61;  affirmed, 
91  N.  Y.  531. 

•t  Hirshkind  v.  Mayer,  91  App. 
Div.  (N.  Y.)  416,  86  N.  Y.  Supp. 
836. 


451 


§361 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


place  of  residence  of  the  husband,^  notwithstanding  the 
legal  fiction  that  the  wife's  domicile  follows  that  of  the 
husband,®  subject  to  the  defendant's  right  to  a  change  of 
the  place  of  trial/ 


§361. 


Co-plaintiffs.  The  provisions  in  such  stat- 


utes requiring  the  commencement  of  the  trial  of  the  action 
in  the  county  in  which  the  parties,  "or  one  of  the  par- 
ties," reside  and  is  domiciled  at  the  time  of  the  com- 
mencement of  the  action,  does  not  mean  that  all  of  the 
plaintiffs  shall  reside  in  the  county  in  which  the  action  is 
commenced,  where  commenced  in  the  county  of  the  resi- 
dence of  the  plaintiffs  instead  of  in  the  county  of  the 
residence  of  the  defendants,  if  any  one  of  them  resides  in 
such  county  it  is  sufficient  to  carry  venue  ;^  that  is  to  say. 


5  See  Kerr's  Cyc.  Cal.  Civ.  Code, 
§  128.  See:  ILL.— Derby  v.  Derby, 
14  111.  App.  645.  IND.— Jenness  v. 
Jenness,  24  Ind.  355,  87  Am.  Dec. 
335.  MASS. — Jenney  v.  Jenney,  14 
Mass.  231;  Harteau  v.  Harteau,  31 
Mass.  (14  Pick.)  181,  25  Am.  Dec. 
372;  Brett  v.  Brett,  46  Mass.  (5 
Mete.)  233;  Shaw  v.  Shaw,  98 
Mass.  158;  Blackinton  v.  Blackin- 
ton,  141  Mass.  432,  55  Am.  Rep. 
484,  5  N.  E.  830;  Burtis  v.  Burtis, 
161  Mass.  508,  37  N.  E.  740.  NEB. 
— Dickman  v.  Birkhauser,  16  Neb. 
686,  21  N.  W.  396.  N.  J.— Tracy  v. 
Tracy,  62  N.  J.  Eq.  807,  48  Atl.  533. 
N.  Y. — Vence  v.  Vence,  15  How. 
Pr.  497;  affirmed,  15  How.  Pr.  576, 
note.  N.  C. — Schonwald  v.  Schon- 
wald,  55  N.  C.  (2  Jones  Eq.)  367. 
PA.— Cain  v.  Cain,  5  Pa.  Co.  Ct. 
Rep.  669;  Reed  v.  Reed,  30  Pa. 
Super.  Ct.  Rep.  229.  R.  I.— Ditson 
V.  Ditson,  4  R.  I.  87.  WIS.— 
Dutcher  v.  Dutcher,  39  Wis.  651. 

As  to  wife's  domicile  for  pur- 
poses of  a  divorce,  see  note  16 
L.  R.  A.  497. 


452 


6  See  Loker  v.  Gerald,  157  Mass. 
42,  34  Am.  St.  Rep.  252,  16  L.  R.  A. 
497,  31  N.  E.  709. 

Burden  of  proof  to  show  deser- 
tion by  the  husband  rests  on  wife, 
otherwise  her  domicile  is  taken  to 
follow  that  of  her  husband. — Ken- 
drick  v.  Kendrick,  188  Mass.  555, 
74  N.  E.  598. 

Wilfully  remaining  away  from 
husband,  the  rule  of  law  is  differ- 
ent.—Hunt  V.  Hunt,  72  N.  Y.  217, 
28  Am.  Rep.  129,  affirming  9  Hun 
622. 

7  Warner  v.  Warner,  100  Cal.  11, 
15,  34  Pac.  523. 

California  Civil  Code,  §  128,  must 
be  read  in  connection  with  §§  395 
and  397  of  the  Code,  of  Civil  Pro- 
cedure. Section  128  of  Civil  Code 
limits  the  place  of  commencement 
of  actions  for  divorce;  §§395  and 
397  of  Code  Civ.  Proc.  provide  the 
place  of  trial  for  such  actions. — 
Warner  v.  Warner,  100  Cal.  11,  15, 
34  Pac.  523. 

1  Shepard  v.  Squire,  76  Hun 
o 


ch.  XVI.]  SUING    IN    DIFFERENT    COUNTIES.  §  362 

where  there  are  two  or  more  plaintiffs,  they  may  elect  to 
commence  the  action  and  to  have  it  tried  in  any  county  in 
which  any  one  of  such  plaintiffs  resides  and  is  domiciled 
at  the  time  of  the  commencement  of  the  action.-  In  those 
cases  where  the  question  to  be  litigated  is  one  of  common 
or  general  interest  to  a  large  number  of  persons  and, 
under  the  statutory  provision,^  one  or  more  may  sue  and 
prosecute  for  the  benefit  of  all,  a  person  of  the  class  of 
persons  interested  and  for  whose  benefit  the  action  is 
prosecuted,  but  who  is  not  named  in  the  complaint,  even 
brought  in  as  a  party  by  order  of  the  court,  can  not  be 
regarded  as  a  party  to  the  action  on  the  hearing  of  a 
motion  for  the  change  of  the  place  of  trial. ^ 

'^  362.   Right  to  sue  in  different  counties — PjLec- 

TioN.  "We  have  already  discussed  the  right  to  sue  in  dif- 
ferent counties,  election  and  what  constitutes  an  election, 
in  one  of  its  phases,^  and  it  remains  but  to  add  here  that, 
in  residentiary  actions,  where  the  statutory  provision  as 
to  venue  contains  an  exception,  this  exception  gives  to  the 
plaintiff  an  election  as  to  the  county  in  which  his  action 
shall  be  commenced  and  tried;-  where  necessary  defen- 
dants reside  in  different  counties,  plaintiff  may  elect  in 
which  county  he  ^vill  sue  f  and  the  plaintiff  may  also  have 
an  election  in  those  cases  in  which  the  defendant  lives 
alternately  in  two  or  more  counties,  it  being  uncertain  in 
which  he  has  his  legal  residence,  and  he  has  not  complied 
with  the  law  requiring  him  to  file  a  declaration  as  to  in 

(N.  Y.)    598,  23  N.  Y.   Civ.   Proc.  631,  45  S.  W.  376,  affirming  In  part 

Rep.  403,  28  N.  Y.  Supp.  218.  and  reversing  in  part  44  S.  W.  198. 

2  Brown  v.  Bache,  66  App.  Div.  3  as  New  York  Code  Civ.  Proc, 

(N.  Y.)    367,  72  N,  Y.  Supp.  687;  §  443 


4  Brown  v.  Bache,  66  App.  Div. 
(N.  Y.)  367,  72  N.  Y.  Supp.  687. 


Mills    V.     Starin,    119    App.    Div, 

(N.  Y.)    336,   39  N.   Y.  Civ.   Proc. 

Rep.    338,    104    N.    Y.    Supp.    230; 

Forehand  v.  Collins,  1  Hun  (N.  Y.)  ^  ^^®'  ^°*®'  §  ^^2- 

316;    Shepard    v.    Squire,    76    Hun  2  Carro  v.  Carro,  60  Tex.  395. 

(N.  Y.)    598,   23  N.   Y.   Civ.   Proc.  ^  Holm  v.  Colman,  89  Wis.  233, 

Rep.  403,  28  N.  Y.  Supp.  218;  Fos-      61  N.  W.  767. 

ter  v.  Gulf,  C.  &  S.  R.  Co.,  91  Tex.  See,  also,  post,  §§  364-366. 


§363 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


which  he  has  established  his  residence  ;^  or  where  a  defen- 
dant has  recently  removed  from  one  county  to  another 
and  is  guilty  of  the  same  delinquency/^  Where  the  plain- 
tiff brings  suit  in  the  wrong  county  the  defendant,  by  his 
acts  and  conduct,  may  submit  himself  to  that  venue," 
waiving  his  right  to  object  and  become  estopped  to  move 
for  a  change  of  place  of  trial  on  account  of  a  wrong 
venue."^ 

§  363.     As  TO  EIGHTS  OF  DEFENDANTS In  GENEEAL.      Wc 

have  already  seen  that  in  California,  and  the  same  is  true 
in  other  states  with  similar  statutes, — residentiary  actions 
are  to  be  tried  in  the  county  in  which  the  defendants,  or 
one  of  them,  reside  at  the  time  of  the  commencement  of 
the  action  ;^  but  the  right  of  the  defendant  to  be  tried  in 


4  Crawford  v.  Read,  9  Rob.  (La.) 
243;  Taylor  v.  Beach,  17  La.  Ann. 
61;  Evans  v.  Payne,  30  La.  Ann. 
498. 

5  Berry  v.  Gaudy,  15  La.  Ann. 
533;  Ausbacher  v.  De  Nevue,  45 
La.  Ann.  988,  13  So.  396;  Vallee  v. 
Hunsberry,  108  La.  136,  32  So.  359. 

6  Tolliurst  V.  Howard,  94  App. 
Div.  (N.  Y.)  439,  88  N.  Y,  Supp. 
235. 

7  As  to  objections  and  excep- 
tions, waiver  and  estoppel,  see, 
ante,  §  355,  post,  §§  387,  388. 

1  Ante,  §359.  See:  CAL.— Loehr 
V.  Latham,  15  Cal.  418;  Watkins  v. 
Degener,  63  Cal.  500;  Hershfield  v. 
Sevier,  77  Cal.  448,  19  Pac.  819; 
Banta  v.  Wink,  119  Cal.  78,  80,  51 
Pac.  17;  Quint  v.  Dimond,  135  Cal. 
572,  67  Pac.  1034;  Aisbett  v.  Para- 
dise Mountain  Min.  «S;  Mill.  Co.,  21 
Cal.  App.  267,  131  Pac.  330.  GA.— 
Williams  Co.  (J.  P.)  v.  Bunn,  114 
Ga.  707,  40  S.  E.  738;  Waycross 
Air  Line  R.  Co.  v.  Offerman  &  W. 
R.  Co.,  114  Ga.  727,  40  S.  W.  738; 
Cox  V,  Strickland,  120  Ga.  104,  47 


S.  E.  912;  McGarity  v.  Simpson, 
95  S.  E.  968;  Brock  v.  Brantley 
Co.  (A.  P.),  96  S.  E.  176.  IND.— 
Indiana  Nitroglycerine  &  Torpedo 
Co.  V.  Lippencott  Glass  Co.,  165 
Ind.  361,  72  N.  E.  649.  KAN.— 
Rullman  v.  Hulse,  33  Kan.  670,  7 
Pac.  210.  KY.— Hendrix  v.  Nes- 
bitt,  96  Ky.  652,  29  S.  W.  621; 
Swift's  Exr.  V.  Donahue,  104  Ky. 
137,  46  S.  W.  683;  Ferguson  v. 
Moore,  19  Ky.  L.  Rep.  1681,  44 
S.  W.  113.  MO.— Stillwell  v.  Craig, 
58  Mo.  24;  Cooney  v.  Pryor  (Mo. 
App.),  203  S.  W.  629.  NEB.— First 
Nat.  Bank  v.  Gibson,  69  Neb.  21, 
94  N.  W.  965.  OKLA.— First  Nat. 
Bank  v.  Hesser,  14  Okla.  115,  77 
Pac.  36;  Friedman  v.  First  Nat. 
Bank,  39  Okla.  486,  49  L.  R.  A. 
(N.  S.)  548,  135  Pac.  1069.  TEX.— 
Cobb  V.  Barber,  92  Tex.  309,  47 
S.  W.  963;  Scottish-American 
Mortgage  Co.  v.  Davis  (Tex.  Civ. 
App.),  72  S.  W.  217;  judgment 
modified  on  another  point  in  96 
Tex.  504,  97  Am.  St.  Rep.  932.  74 
S.  W.  17;   Walhoefer  v.  Hobgood, 


454 


Ch.  XVI.]  RIGHTS   OF    DEFENDANT   AS   TO    TRIAL,. 


§363 


the  county  of  his  residence  is  subject  to  the  discretionary 


18  Tex.  Civ.  App.  291,  44  S.  W. 
566;  Dublin  Cotton-Oil  Co.  v.  Rob- 
inson (Tex.  Civ.  App.),  50  S.  W. 
1054;  Fermier  v.  Brannan,  21  Tex. 
Civ.  App.  543,  53  S.  W.  699;  Lind- 
j  sey  V.  State,  27  Tex.  Civ.  App. 
540,  66  S.  W.  332;  Cruz  v.  Texas 
Glass  &  Paint  Co.  (Tex.  Civ.  App.), 
199  S.  W.  819;  Kunz  v.  Ragsdale 
(Tex.  Civ.  App.),  200  S.  W.  269; 
Houston  &  T.  C.  R.  Co.  v.  Ennis, 
City  of  (Tex.  Civ.  App.),  201  S.  W. 
256.  WASH. — Kennedy  v.  Derrick- 
son,  5  Wash.  289,  31  Pac.  766; 
McMaster  v.  Advance  Thresher 
Co.,  10  Wash.  147,  38  Pac.  760. 
WIS.— Pereles  v.  Albert,  12  Wis. 
666. 

Assault  upon  passenger  by  rail- 
road conductor  and  another,  action 
against  the  railroad  corporation 
and  such  other  person  is  properly 
brought  and  tried  in  the  county  of 
the  residence  of  such  other. — Cen- 
tral of  Georgia  R.  Co.  v.  Brown, 
113  Ga.  414,  84  Am.  St.  Rep.  250, 
38  S.  E.  989.  See  same  principle 
Aisbett  V.  Paradise  Mountain  Min. 
&  Mill.  Co.,  21  Cal.  App.  267,  131 
Pac.  330. 

Co-defendant  can  not  sever 
where  other  defendant  resides  in 
county  where  action  is  brought. — 
Walhoefer  v.  Hobgood,  18  Tex. 
Civ.  App.  291,  44  S.  W.  566. 

Conversion  of  property  charged, 
action  may  be  maintained  in  the 
county  of  the  residence  of  any  of 
the  defendants  charged. — Cobb  v. 
Barber,  92  Tex.  309,  47  S.  W.  963. 
Corporation  and  another  defen- 
dants,— e.  g.,  action  to  declare  in- 
valid an  assessment  upon  stock, — 
action  properly  brought  in  county 
of  residence  of  individual  defen- 
dant, although  that  county  is  one 


other  than  that  in  which  the  cor- 
poration has  its  principal  office 
and  place  of  business. — Aisbett  v. 
Paradise  Mountain  Min.  &  Mill. 
Co.,  21  Cal.  App.  267,  131  Pac.  330. 
See  same  principal  Central  of 
Georgia  R.  Co.  v.  Brown,  113  Ga. 
414,  84  Am.  St.  Rep.  250,  38  S.  E. 
989. 

Fraudulently  conveyed  funds 
sought  to  be  reached,  action  may 
be  maintained  where  the  debtor 
resides  and  the  transferee  served 
in  another  county.  —  First  Nat. 
Bank  v.  Gibson,  69  Neb.  21,  94 
N.  W.  965. 

Joint  obligors  may  be  sued  in 
the  county  in  which  either  re- 
sides.—First  Nat.  Bank  v.  Hesser, 
14  Okla.  115,  77  Pac.  36. 

Husband  and  wife  sued  for  nec- 
essaries furnished  wife  living  sep- 
arate and  apart  from  her  husband, 
may  be  maintained  in  the  county 
of  the  residence  of  the  wife. — Fer- 
mier V.  Brannan,  21  Tex.  Civ.  App. 
543,  53  S.  W.  699. 

As  to  wife's  domicile,  and  where 
separate  from  that  of  her  husband, 
see,  ante,  §  360,  footnotes  5  and  6. 
Master  and  servant  properly 
joined  as  defendants  in  action  for 
damages  for  injuries  sustained  by 
negligence  of  servant  in  conduct- 
ing master's  business,  and  action 
may  be  brought  in  the  county  of 
the  residence  of  either. — Indiana 
Nitroglycerine  &  Torpedo  Co.  v. 
Lippencott  Glass  Co.,  165  Ind.  361, 
72  N.  E.  649. 

Nonresidence  of  some  defen- 
dants does  not  deprive  defendants 
residing  within  state  of  right  to 
transfer  of  place  of  trial  to  county 
in  which  they,  or  some  of  them. 


455 


§363 


CODE  PLEADING  AND  PRACTICE. 


[Pt.I, 


power  of  the  court  to  change  the  place  of  trial.^  Thus, 
where  two  wrongdoers  reside  in  different  counties,  suit 
against  both  may  be  maintained  in  the  county  in  which 
either  resides  f  and  where  an  individual  is  properly  joined 
with  a  railroad  corporation  as  defendants  in  an  action 
to  prevent  the  corporation  from  removing  division  head- 
quarters from  a  town  at  which  they  had  been  established 
under  contract,  the  venue  is  properly  laid  in  the  county 
of  the  residence  of  the  individual  defendant;^  but  where 
the  defendant  in  the  county  of  whose  residence  the  venue 
is  laid  is  improperly  joined  as  a  defendant  the  rule  will 
be  different.^  It  has  been  said  that  actions  to  recover 
damages  for  injuries  to  the  person*^  and  actions  for  creat- 
ing a  private  nuisance  are  governed  by  the  same  rule, 
being  actions  for  injury  to  the  person  f  but  in  California 
such  actions  are  governed  by  statutory  provision,  and 
may  be  brought  in  the  county  in  which  the  act  or  injury 
complained  of  took  ijlace.^    We  have  already  seen  that  in 


reside. — Banta  v.  Wink,  119  Cal. 
78,  80,  51  Pac.  17. 

Railroad  defendants  within  the 
rule. — Waycross  Air  Line  Co.  v. 
Offerman  &  W.  R.  Co.,  114  Ga.  727, 
40  S.  E.  738. 

Real  estate  broker  suing  for 
commission  can  not  join  the  ven- 
dee, residing  in  another  county. — 
Scottish-American  Mortgage  Co.  v. 
Davis  (Tex.  Civ.  App.),  72  S.  W. 
217;  judgment  modified  on  another 
point  in  96  Tex.  504,  97  Am,  St. 
Rep.  932,  74  S.  W.  17. 

Surety's  action"  for  contribution 
against  heirs  and  devisees  of  co- 
surety, may  be  brought  and  tried 
in  the  county  of  the  residence  of 
any  of  the  latter. — Swift's  Exr.  v. 
Donahue,  104  Ky.  137,  46  S.  W.  683. 

Warehouseman  claiming  lien  on 
crop  may  join  vendor  and  pur- 
chaser and  bring  suit  in  the  county 
of  residence  of  either.— Ferguson 


V.  Moore,  19  Ky.  L.  Rep.  1681,  44 
S.  W.  113. 

2  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §397;  Consolidated 
Supp.  1906-1913,  p.  1429. 

3  McPhaul  v.  Fletcher,  111  Ga. 
878,  36  S.  E.  938;  Central  of  Geor- 
gia R.  Co.  V.  Brown,  113  Ga.  414, 
84  Am.  St.  Rep.  250,  38  S.  E.  989; 
Cooper  V.  Oglethrope  Sav,  &  Trust 
Co.,  147  Ga.  570,  94  S.  E.  1006. 

4  Houston  &  T.  C.  R.  Co.  v. 
Ennis,  City  of  (Tex.  Civ.  App.), 
201  S.  W.  256. 

5  Kunz  V.  Ragsdale  (Tex.  Civ. 
App.),  200  S.  W.  269. 

6  Mclvor  V.  McCabe,  16  Abb.  Pr. 
(N.  Y.)  319,  26  How.  Pr.  257. 

7  Ray  V.  Sellers,  62  Ky.  (1  Duv.) 
254. 

s  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §395;  Consolidated 
Supp.  1906-1913,  p.  1425. 


456 


ell.  XVI.]  MAKERS,    ETC. — PRINCIPALS,   ETC.  §  364 

an  action  for  a  divorce  brought  by  a  woman  living  sepa- 
rate and  apart  from  her  husband  for  his  fault  may  be 
brought  in  the  county  of  the  wife's  residence,  but  the 
defendant  has  a  right  to  have  the  place  of  trial  changed 
to  the  county  in  which  he  resides.'-^  As  respects  transitory 
actions  generally  it  may  be  said  that  any  county  where 
service  of  summons  may  be  had  is  a  proper  county.  Ser- 
vice within  the  county  where  the  action  is  brought  is 
essential  to  jurisdiction,  but  a  voluntary  appearance  is 
equivalent  to  personal  service.^"  In  quo  warranto,  the 
people  being  a  party,  their  residence  extends  to  every  • 
county.^ ^  In  proceedings  for  a  mandamus  to  compel  the 
execution  of  a  sheriff's  deed  to  a  redemptioner,  the  action 
may  be  commenced  in  the  county  where  the  relator  re- ' 
sides. ^^  The  writ  of  habeas  corpus,  however,  should  not= 
issue  to  run  out  of  the  county,  unless  for  a  good  cause 
sliown.^^ 

"§  364.    Makers   and   indorsers  :     Principals   and 

SURETIES.  The  rule  as  to  the  proper  venue  above  an- 
nounced applies  in  those  cases  in  which  the  parties  defen- 
dant are  maker  and  indorser,  or  principal  and  surety,  on 
negotiable  paper  and  other  written  obligations,  and  the 
action  is  properly  commenced  and  tried  in  the  county  in 
which  either  of  the  defendants  resides  at  the  time  of  the 
commencement  of  the  action;^  and  where  there  is  more 

9  See,  ante,  §360.  Weeks,  122  Ga.  70,  49  S.  E.  809; 

10  Brown    v.    Deschutes    Bridge  Stilwell  v.  Craig,  58  Mo.  24;  Pear- 
Co.,  23  Ore.  7,  35  Pac.  177.  son  v.   Kansas   Mfg.  Co.,   14   Neb. 

11  People   V.   Cook,    6    How.    Pr.  211,  15  N.  W.  346;  First  Nat.  Bank 
(N.  Y.)  448.  V.  Hesser,  14  Okla.  115.  77  Pac.  36: 

12  McMillan  v.  Richards,  9  Cal.  Steele  v.  Hudson,  30  Okla.  518,  120 
365,  420,  70  Am.  Dec.  655.  Pac.  616;  Holm  v.  Colnian,  89  Wis. 

13  Ellis,   Ex   parte,   11   Cal.    222,  233,  61  N.  W.  767. 

225;  Deny,  Ex  parte,  10  Nev.  214;  Drawee  of  draft  agreeing  to  ac- 

Lynn,  Ex  parte,  19  Tex.  App.  122.  cept  on  presentation  of  draft  by  an 

1  Austin  V.  Raidford,  61  Ga.  125;  assignee  thereof  renders  the  maker 

Lumpkin  v.  Galloway,  101  Ga.  226,  and  drawee  jointly  liable   on   the 

28  S.  E.  622;  Heard  v.  Tappan,  116  draft  to  the  assignee  thereof,  and 

Ga.  930,   43   S.  E.   375;    Saussy  v.  suit  may  be  brought  in  the  county 

457 


§365 


CODE   PLEADING   AND   PRACTICE. 


[Ft.  I, 


than  one  indorser  or  surety,  the  action  may  be  commenced 
and  tried  in  the  county  of  the  residence  of  any  of  the 
indorsers  or  sureties ;-  but  where  an  action  is  commenced 
against  a  principal  and  his  surety  in  a  county  other  than 
the  county  in  which  such  surety  resides,  it  must  appear 
that  the  county  in  which  the  action  is  brought  is  the 
county  of  the  residence  of  the  principal,  in  order  to  con- 
fer jurisdiction  on  the  court  over  the  surety.^ 


§365. 


Materiality   of   resident   defendant.     In 


those  cases  in  which  there  are  two  or  more  defendants, 
each  residing  in  a  different  county,  or  all  but  one  residing 
in  a  different  county  than  the  one  in  which  the  action  is 
brought,  the  defendant  resident  in  the  county  in  which  the 
action  is  commenced  must  be  a  material  and  necessary 
defendant;  that  is  to  say,  a  defendant  who  is  in  reality 
interested  in  the  subject-matter  of  the  action  antagonis- 
tically to  the  plaintiff,^  against  whom  relief  is  prayed  in 


in  which  the  maker  resides. — Hull 
V.  First  Guaranty  State  Bank  of 
Overton  (Tex.  Civ.  App.),  199  S.  W, 
1148. 

Indemnity  bond  sued  at  county 
of  residence  of  principal,  sureties 
residing  in  another  county  are  en- 
titled to  have  trial  of  cause  re- 
moved to  county  of  their  resi- 
dence, under  Colo.  Code,  §  27. — 
Brewer  v.  Gordon,  27  Colo.  Ill,  83 
Am.  St.  Rep.  45,  59  Pac.  404. 

Maker  and  indorser  sued  in 
county  of  residence  of  indorser, 
who  makes  no  defense  and  suffers 
default  to  be  entered,  maker  can 
not  have  service  on  him  set  aside 
because  he  is  not  a  resident  of  the 
county  in  which  action  brought. — 
Steele  v.  Hudson,  30  Okla.  518,  120 
Pac.  616. 

Principal  and  guarantor  sued  in 
county  of  residence  of  latter,  fact 
guarantor  has  been  released  does 


not  affect  the  venue. — Slaughter  v. 
Moore,  17  Tex.  Civ.  App.  233,  42 
S.  W.  372. 

2  Modoc  County  v.  Madden,  136 
Cal.  134,  68  Pac.  491. 

3  County  treasurer  and  surety 
sued  in  court  of  county  in  which 
treasurer-defendant  defaulted,  and 
service  made  on  such  defaulting 
treasurer  in  another  county,  the 
security  being  a  corporation  with 
no  office  or  officer  in  the  county 
of  suit  upon  whom  service  could 
be  made,  no  jurisdiction  over  the 
surety  attached  without  a  showing 
that  the  county  in  which  the  action 
was  brought  was  the  county  of 
residence  of  the  defaulting  treas- 
urer.— Whitman  County  v.  Raley, 
49  Wash.- 150,  94  Pac.  906. 

1  See  Waddell  v.  Lanier,  54  Ala. 
440,  442;  Read  v.  San  Diego  Union 
Co.,  6  Cal.  Unrep.  703,  65  Pac.  567; 
McLean  v.   Farmers'   H  i  g  h  1  i  n  e 


458 


eh.  XVI.] 


MATERIALITY    OF   DEFENDANT; 


§365 


tlie  complaint-  and  a  judgment  or  decree  sought;^  a  neces- 
sary and  indispensable  party,"*  as  distingiiished  from  a 
mere  proper  party.^    Not  only  this,  the  liability  must  be 


Canal  &  Reservoir  Co.,  44  Colo. 
184,  98  Pac.  16;  Barry  v.  Wachosky, 
57  Neb.  534,  77  N.  W.  1080. 

Resident  joined  for  jurisdiction 
merely,  and  not  in  good  faith  to 
recover  a  judgment  against  such 
resident  defendant,  but  to  enable 
the  plaintiff  to  recover  a  judgment 
in  the  jurisdiction  of  the  venue 
against  a  nonresident  defendant, 
this  will  not  authorize  a  service 
upon  another  defendant  out  of  the 
jurisdiction  of  the  venue,  and  such 
a  service  out  of  the  jurisdiction 
will  not  confer  upon  the  court  jur- 
isdiction over  such  nonresident  de- 
fendant.— Hawkins  v.  Brown,  78 
Kan.  284,  97  Pac.  479. 

Test  in  determining  materiality 
of  resident  defendant  is  in  ascer- 
taining whether  he  is  a  bona  fide 
defendant;  one  having  an  interest 
in  the  action  and  the  determina- 
tion thereof  adverse  to  the  plain- 
tiff.—Barry  v.  Wachosky,  57  Neb. 
534,  77  N.  W.  1080. 

2  ALA. — Brierfield  Coal  &  Iron 
Co.  V.  Gay,  106  Ala.  615,  17  So.  618. 
ARK. — Hancock  v.  Gibson,  72  Ark. 
322,  79  S.  W.  1061.  COLO.— Mc- 
Lean v.  Farmers'  Highline  Canal  & 
Reservoir  Co.,  44  Colo.  187,  98  Pac. 
16.  GA.— Sims  v.  Sims,  50  Ga. 
572;  Smith  v.  Croker,  74  Ga.  390. 
NEB.— Dunn  v.  Haines,  17  Neb. 
560,  23  N.  W.  501;  Barry  v.  Wa- 
chosky, 57  Neb.  534,  77  N.  W.  1080. 
OHIO— Allen  v.  Miller,  11  Ohio  St. 
374;  Thompson  v.  Massie,  41  Ohio 
St.  307.  TENN.— Simonton  v.  Por- 
ter. 60  Tenn.  (1  Baxt.)  213.  TEX.— 
Pool  v.  Pickett,  8  Tex.  122. 

V.  Lewis  V.  Elrod,  38  Ala.  17,  21. 


4  As  to  distinction  between  n-ec- 
essary  and  indispensable,  see 
Becker  v.  Hopper,  23  Wyo.  20P, 
Ann,  Cas.  191SB,  35,  147  Pac.  1085, 
1088. 

Surviving  partner  resident  in 
county  in  which  personal  represen- 
tative of  a  deceased  member  of  a 
partnership  for  a  partnership  ac- 
counting is  a  necessary  party,  and 
where  joined  with  a  nonresident 
defendant,  the  fact  that  he  unites 
with  such  nonresident  defendant 
in  an  application  for  a  change  of 
the  place  of  trial  to  the  county  of 
the  residence  of  the  latter,  on  the 
ground  that  the  resident  defen- 
dant, not  having  possession  of  any 
of  the  property  or  assets  of  the 
partnership,  is  merely  a  nominal 
party,  does  not  alfect  the  right  of 
the  plaintiff  to  have  the  cause 
tried  in  the  county  of  the  residence 
of  the  surviving  partner. — O'Brien 
v.  O'Brien,  16  Cal.  App.  193,  116 
Pac.  696. 

5  Hartwell  v.  Lehman,  72  Ala. 
344,  346;  Taylor  v.  Lytle,  26  Idaho 
97,  141  Pac.  92. 

Corporation  having  no  interest, 
though  a  proper,  is  not  a  necessary 
party  defendant  in  an  action  to 
compel  a  shareholder  to  transfer 
shares  in  accordance  with  an  al- 
leged agreement,  and  where  the 
action  is  commenced  in  the  domi- 
cile of  the  corporation  the  share- 
holder has  a  right  to  a  change  of 
the  place  of  trial  to  the  county  of 
his  residence. — Sayward  v.  Hough- 
ton, 82  Cal.  628,  23  Pac.  120. 

Where  the  corporation  has  or 
claims  an  interest  in  the  subject- 


459 


§  365  CODE  PLEADING  AND  PRACTICE.  [Pt-  I, 

joint  and  several,  not  a  different  and  severable  liability.*' 
But  the  fact  that  the  plaintiff  has  a  right  to  maintain  an 
action  against  the  principal  defendant,  alone,  for  a  part 
of  the  relief  to  which  he  is  entitled,  does  not  warrant  a 
change  of  the  place  of  the  trial  of  the  cause  of  action 
against  all  of  the  persons  responsible  to  the  plaintiff  in 
the  cause  of  action  stated  in  the  complaint.'^  The  test  on 
a  motion  for  a  change  of  the  place  of  trial  of  a  cause  is  to 
be  made  by  ascertaining  who  are  necessary  parties  to  the 
action  as  the  cause  of  action  is  stated  in  the  complaint, 
and  to  enable  the  plaintiff  to  obtain  all  the  relief  prayed 
for  in  his  complaint.  If  one  of  the  persons  thus  a  neces- 
sary party  resides  within  the  county  in  which  the  action 
was  commenced,  or  resided  there  at  the  time  of  the  com- 
mencement of  the  action,  the  venue  is  properly  laid.* 
Where  an  owner  and  another  operating  a  combined- 
harvester  and  engine  negligently  destroy  by  fire  the  grain 
of  the  plaintiff  on  an  adjoining  property,  such  other  is  a 
necessary  party  Tsdth  the  owner  of  the  combined-harvester 
and  engine  in  a  suit  for  damages,  and  such  suit  may  be 
brought  in  the  county  in  which  such  other  person  resides ; 
the  fact  that  the  machinery  was  defective  is  immaterial 
on  an  application  for  a  change  of  the  place  of  trial  to  the 
county  in  which  the  owner  resides.^  Where  the  only  de- 
fendant resident  in  the  county  in  which  the  suit  was  com- 
menced is  an  unnecessary  party,  the  necessary  defendant 
residing  elsewhere  is  entitled  to  have  the  trial  of  the 
cause  transferred  to  the  county  of  his  residence.^^    And  a 

matter  of  the  litigation,  the  rule  is  Joinder  of  all  defendants  In  de- 
otherwise.— Hellman  V.  Logan,  148  mand  for  change  of  place  of  trial 
Cal.  58,  82  Pac.  848.  to  the  county  of  the  residence  of 

6  Penney  v.  Bryant,  70  Neb.  127,  ^-^^  ^^^^^  ^j  ^1,^  machine  does  not 

9G  N.  W.  1033.  require  the  court  to  grant  the  re- 

7  Hellman  v.  Logan,  148  Cal.  58, 


quest  for  such  change  of  place  of 
trial. — Quint  v.  Dimond,  135  Cal. 
572,  67  Pac.  1034. 


82  Pac.  848. 

8  Hellman  v.  Logan,  148  .Cal.  58, 
82  Pac.  848. 

&  Quint  V.  Dimond,  135  Cal.  572,  lo  Sayward  v.  Houghton,  82  Cal 

67  Pac.  1034.  629,  23  Pac.  120, 

460 


eh.  XVI.]  MATERIALITY,    ETC. — MISJOINDER.  §  366 

suit  on  an  obligation  commenced  in  the  county  in  which 
it  was  to  have  been  performed,  will  not  warrant  joining 
as  a  defendant  a  person  nonresident  of  the  county  who 
was  not  a  party  to  the  obligation.^ ^  AVhere  the  only 
defendant  against  whom  facts  stated  in  the  complaint 
will  justify  a  judgment  resides  in  a  county  other  than  the 
one  in  which  the  action  is  brought,  such  defendant  is 
entitled  to  a  change  of  the  place  of  trial  to  the  county  in 
which  he  resides.^-  A  defendant's  right  to  a  change  of 
the  place  of  trial  to  the  county  of  his  residence  is  to  be 
determined  by  the  allegations  in  the  complaint  at  the  time 
of  filing  the  written  demand  and  making  the  motion ;  his 
right  is  not  taken  away  by  the  allegations  made  in  an 
amended  complaint  setting  up  a  cause  of  action  against  a 
resident  defendant,  filed  after  an  application  for  a  change 
of  venue  is  made.^^  Where  a  suit  is  brought  on  the  bond 
of  joint  administrators  and  their  sureties  in  the  county 
of  the  residence  of  the  administrator  against  whom  no 
judgment  can  be  recovered,  the  sureties  on  the  bond 
residing  in  another  county,  the  court  acquires  no  juris- 
diction over  the  sureties. ^^  In  a  case  in  which  three  per- 
sons are  joined  as  defendant,  and  the  two  residing  in  the 
county  in  which  the  action  is  conunenced  are  proper  par- 
ties plaintiff  under  the  allegations  in  the  complaint,  in 
the  absence  of  an  allegation  that  the  resident  defendants 
refused  to  join  in  the  action  as  plaintiffs,  the  nonresident 
defendant  is  entitled  to  a  change  of  the  place  of  trial  to 
the  county  of  his  residence. ^^ 

§  366.    Misjoinder — In  general.    From  what  has 

been  said  in  the  preceding  section  respecting  the  necessity 
for  the  resident  defendant  being  a  material  and  necessary 
defendant,  and  not  merely  a  nominal  one,  or  a  party 
selected  merely  for  the  purpose  of  laying  venue,  in  order 

iiBehrens   Drug  Co.   v.   Hamil-  i4Ross  v.  Battle,  117  Ga.  877,  45 

ton,  92  Tex.  284,  48  S.  W.  50.  S.  E.  252. 

i2Buell  V.  Dodge,  57  Cal.  645.  i5Read  v.  San  Diego  Union  Co., 

13  Buell  V.  Dodge,  57  Cal.  645.  6  Cal.  Unrep.  703,  65  Pac.  5G7. 

461 


§  366  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

to  confer  jurisdiction  on  the  court  over  the  nonresident 
defendants,  it  follows  that  a  misjoinder  of  parties  defen- 
dant in  that  no  cause  of  action  exists  in  favor  of  the 
plaintiff  and  against  the  resident  defendant  on  the  facts 
set  out  in  the  complaint/  or  a  different  relief  is  sought 
against  the  resident  defendant  from  that  asked  against 
the  nonresident  defendant, — e.  g.,  legal  relief  against  res- 
ident defendant  and  equitable  relief  against  nonresident 
defendant,- — no  jurisdiction  will  be  conferred  on  the  court 
over  the  nonresident  defendants,^  according  to  the  doc- 
trine of  some  of  the  cases,  or  does  not  prevent  the  non- 
resident defendant  from  requiring  a  change  of  the  place 
of  the  trial  to  the  county  of  his  residence,^  according  to 
the  doctrine  in  other  jurisdictions.  Thus,  where  joint 
makers  of  a  promissory  note,  residing  in  different  coun- 
ties, are  sued  upon  it  before  maturity  in  the  county  of  the 
residence  of  one  of  the  makers  and  a  summons  issued  to 
the  county  of  the  residence  of  the  other  maker  and  prop- 
erty of  the  latter  attached  in  the  county  of  his  residence, 
on  the  ground  of  an  anticipated  fraudulent  transfer  of 
his  property,  no  attachment  having  been  issued  against 
the  resident  defendant,  and  no  ground  existing  therefor, 
the  action  was  held  to  have  been  wrongfully  commenced 
against  the  resident  defendant,  and  that  as  the  nonresi- 
dent defendant,  against  whom  alone  a  cause  of  action 
existed,  could  not  be  sued  out  of  the  county  of  his  resi- 
dence, the  attachment  must  be  dismissed.^    Making  per- 

1  See  Read  v.  San  Diego  Union  Kan.  598,  5  Pac.  176;  rehearing  de- 
Co.,  6  Cal.  TJnrep.  703,  65  Pac.  567;  nied,  33  Kan.  670,  7  Pac.  210. 
Hamilton  v.  Du  Pre,  111  Ga.  819,  4  Kerr's    Cyc.    Cal.    Code    C  i  v. 
35  S.  E.  684.  Proc,  2d  ed.,  §395,  last  clause; 

2  See  Townsend  v.  Brinson,  117  Consolidated  S  u  p  p.  1906-1913,  p. 
Ga.  375,  43  S.  E.  748;  Ellis  v.  1425;  Read  v.  San  Diego  Union 
Farmer,  119  Ga.  238,  46  S.  E.  105.  Co.,  6  Cal.  Unrep.  703,  65  Pac.  567; 

3  Hamilton  v.  Du  Pre,  111  Ga.  State  ex  rel.  Campbell  v.  Superior 
819,  35  S.  E.  684;  Townsend  v.  Court,  7  Wash.  306,  34  Pac.  1103. 
Bienson,  117  Ga.  375,  43  S.' C.  748;  See,  also,  authorities  cited,  post, 
.Ellis   V.   Farmer,   119   Ga.    238,   46  §  367,  footnote  3. 

N.  E.   105;    Rullman  v.  Hulse,   32  5  RuUman  v,  Hulse,  32  Kan.  598, 

462 


Ch.  XVI.]  DISMISSING   RESIDENT   DEFENDANT.  §  367 

sons  resident  of  the  county  in  which  the  venue  is  laid, 
whom  the  complaint  shows  are  proper  parties  plaintiff, 
joined  with  a  defendant  residing  in  another  county,  con- 
stitutes a  misjoinder  of  defendants,  in  the  absence  of  an 
allegation  in  the  complaint  that  such  resident  defendants 
refused  to  join  as  plaintiffs  in  the  action,  and  the  non- 
resident defendant  will  be  entitled  to  a  change  of  the 
place  of  trial  to  the  county  of  his  residence.®  An  action 
for  malicious  prosecution  brought  against  a  principal,  in 
the  county  of  the  residence  of  such  principal,  and  another 
residing  in  a  different  county,  if  the  principal  is  not  liable 
to  the  plaintiff  on  the  cause  of  action  stated  in  the  com- 
plaint, the  other  defendant  can  not  be  held  liable  because 
of  a  want  of  jurisdiction  in  the  court  over  him,'  according 
to  the  rule  in  some  jurisdictions.  In  a  case  in  which  equi- 
table relief  is  sought  against  a  nonresident  defendant,  no 
such  relief  being  asked  against  the  resident  defendant, 
the  latter  is  improperly  joined,  and  the  court  acquires  no 
jurisdiction  over  the  nonresident  defendant,  in  some  jur- 
isdictions;^ and  in  an  action,  the  main  object  of  which  is 
to  enforce  a  trust,  the  joinder  of  other  persons  as  defen- 
dants against  whom  other  relief  is  sought,  but  who  are 
not  necessary  parties  to  the  determination  of  the  question 
of  trust  involved,  such  joinder  will  not  defeat  the  trustee's 
right  to  have  the  cause  tried  in  the  county  of  his  resi- 
dence.^ 

§  367. Dismissal  as  to  EEsroENT  defendant. 

In  those  cases  in  which  there  are  defendants  li\dng  in 
different  coimties,  and  the  resident  defendants  Avero  prop- 
erly joined  in  the  action,  the  rule  has  been  said  to  be 
different  from  those  cases  in  which  there  was  an  improper 

5  Pac.  176,  rehearing  d  e  n  i  e  d  33  s  See:  Townsend  v.  Brinson,  117 

Kan.  670,  7  Pac.  210.  Ga.   375,   43   S.  E.   74S;    Ellis  v. 

6  See  Read  v.  San  Diego  Union  Farmer,  119  Ga.  238,  46  S.  E.  105. 
Co.,  6  Cal.  Unrep.  703,  65  Pac.  567.  9  State    ex   rel.    Campbell   v. 

7  Hamilton   v.    Du   Pre,   111   Ga.  Superior   Court,    7   Wash.   306,   34 
819,  35  S.  E.  684.  Pac.  1103. 

463 


§  368  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

joinder  of  parties  defendant,  and  that  their  dismissal  will 
not  affect  the  venue  or  the  jurisdiction  of  the  court  over 
the  nonresident  defendants,  and  that  the  latter  can  not 
have  a  change  of  the  place  of  the  trial  to  the  county  of 
their  residence,^  for  the  reason  that  the  rights  of  the 
l)arties  in  respect  to  the  venue  are  determined  by  the 
condition  of  the  things  at  the  time  the  parties  moving 
appeared ;-  but  this  doctrine  has  not  gonewdthout  question 
in  California,  where  a  change  of  venue  may  be  granted,^ 
and  seems  to  be  against  the  rule  laid  down  in  Georgia,* 
Kansas,^  and  perhaps  elsewhere. 

§  368.    Joinder  of  eeal,  and  personal  actions.    We 

have  already  seen  that  the  joinder  of  real  and  personal 
causes  of  action  in  the  same  complaint  renders  the  action 
transitory  in  its  nature;^  and  this  being  true  the  defen- 
dant, under  the  rules  above  laid  down,  has  a  right  to  have 
the  action  tried  in  the  county  of  his  residence,  and  where 
there  are  more  than  one  defendant,  in  the  county  in  which 
some  one  of  them  resided  at  the  time  of  the  commence- 
ment of  the  action.-  Thus,  where  in  a  suit  by  a  A^fe 
against  her  husband  to  secure  maintenance  and  support 
who  joins  other  persons  as  defendants  who  are  the  gran- 
tees in  a  recorded  deed  to  certain  real  property  executed 
by  the  husband  to  such  other  defendants,  alleging  that  the 
deed  was  never  delivered,  and  seeking  to  have  the  cloud 

1  Remington  Sewing  Machine      304,  311,  25  Pac.  1039;    Durfee  v. 
Co.  V.  Cole,  62  Cal.  311,  318.  Harper,  22  Mont.  354,  372.  56  Pac. 

2  Id.;   Wallace  v.  Owsley,  11      582. 

Mont.  219,  221,  27  Pac.  790.  4  See,  ante,  §  366,  footnote  3. 

3  Sayward  v.  Houghton,  82  Cal. 
628,  629,  23  Pac.  120.  See:  Read 
V.  San  Diego  Union  Co.,  6  Cal. 
Unrep.  703,  65  Pac.  568;  Anaheim 
Odd  Fellows'  Hall  Assoc,  v.  Mitch-  ^  See,  ante,  §  333. 

ell,  6  Cal.  App.  568,  92  Pac.  332;  2  Le  Breton  v.  Superior  Court,  66 

Hannon  V.  Nuevo  Land  Co.,  14  Cal.  Cal.  27,  30,  4  Pac.  777;  Smith  v. 
App.  704,  112  Pac.  1105;  Bartley  v.  Smith,  88  Cal.  572,  26  Pac.  356; 
Fraser,  16  Cal.  App.  566,  117  Pac.  Warner  v.  Warner,  100  Cal.  11,  34 
685;    Yore    v.    Murphy,    10    Mont.      Pac.  523. 

464 


5  Pullman  v.  Hulse,  32  Kan.  598. 
5  Pac.  176;  rehearing  denied,  33 
Kan.  670,  7  Pac.  210. 


cli.  XVI.]  "residence"  on  "do.micile."  §  :3G9 

on  the  title  removed,  the  real  cause  of  action  being  merely 
ancillary  to  the  cause  of  action  for  maintenance  and  sup- 
port, the  husband  is  entitled  to  have  the  trial  of  the  cause 
of  action  removed  from  the  county  in  which  the  real  prop- 
erty is  situated  to  the  county  of  his  residence.^ 

§369.  ''Domicile"  or  "residence"  for  purposes  of 
ACTION — In  general.  The  California  statute  fixes  the 
venue  for  all  actions  of  the  residentiary  class  of  actions  in 
the  county  in  which  the  defendants,  or  some  of  them, 
"reside"  at  the  time  of  the  commencement  of  the  action.^ 
In  some  jurisdictions  the  statute  provides  that  the  action 
in  all  residentiary  class  of  actions  shall  be  commenced  and 
the  trial  of  the  cause  had  in  the  county  in  which  the 
defendants,  or  some  of  them,  are  "domiciled."  It  is  to 
be  noted  in  passing  that  there  is  a  generic  distinction 
between  "domicile"  and  "residence."  The  general  rule 
is  that  to  constitute  a  "domicile"  two  things  must  con- 
cur, namely,  (1)  present  residence,  and  (2)  present  inten- 
tion of  making  the  place  of  residence  the  permanent  home, 
and  requires  both  the  fact  and  the  fixed  intent;-  it  is  the 

•■}  Garrett   v.    Garrett    (—    Cal.),  34  Am.  St.  Rep.  311,  32  N.  E.  901; 

172  Pac.  587.  Phillips    v.    Boston,    City    of,    183 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  Mass.  314,  67  N.  E.  250.  MICH.— 
Proc,  2d  ed.,  §395;  Consolidated  High,  In  re,  2  Doug.  515,  523. 
Supp.  1906-1913,  p.  1425.  MINN. — Venable    v.    Paulding,    19 

2  ALA.— Merrill  V.  Morrissett,  76  Minn.  488,  493;  Albion,  Town  of, 
Ala.  433,  437.  CONN.— Hartford,  v.  Maple  Lake,  Village  of,  71  Minn. 
City  of,  V.  Champion,  58  Conn.  268,  503,  74  N.  W.  282.  MISS.— Haris- 
20  Atl.  471.  ILL.— Hayes  v.  Hayes,  ton  v.  Hariston,  27  Miss.  704,  717. 
74  111.  312,  316.  ME. — Sanders  v.  61  Am.  Dec.  500;  Morgan  v.  Munes. 
Getchell,  76  Me.  165,  49  Am.  Rep.  54  Miss.  308.  MO.— State  v.  Smith. 
606.  MD.— Thomas  v.  Warner,  83  64  Mo.  App.  313.  N.  H.— State  v. 
Md.  14,  34  Atl.  830.  MASS.— Put-  Moore,  14  N.  H.  451,  454;  Hart  v. 
nam  v.  Johnson,  10  Mass.  488,  501;  Lindsey,  17  N.  H.  235,  244,  43  Am. 
Lyman  v.  Fiske,  34  Mass.  (17  Dec.  597;  Ayer  v.  Weeks,  65  N.  H. 
Pick.)  231,  234,  28  Am.  Dec.  293;  248,  23  Am.  St.  Rep.  37,  6  L.  R.  A, 
Whitney  v.  Sherborn,  Inhabitants  716,  18  Atl.  1108.  N.  J.—  Cadwal- 
of,  94  Mass.  (12  Allen)  111,  114;  ader  v.  Howell,  18  N.  J.  L.  (2 
Bangs  V.  Brewster,  Inhabitants  of,  Harr.)  138,  144;  State  ex  r  e  1. 
Ill  Mass.  382,  385;  Viles  v.  Beckett  v.  Bordentown,  Collector 
Waltham.  City  of,  157  Mass.  542,  of,  32  N.  J.  L.  (3  Vr.)  192.    N.  Y.— 

I  Code  PI.  and  Pr.— 30  455 


§369 


CODE  PLEADING  AND   PRACTICE. 


[Pt.  I, 


place  where  a  person  lives  and  has  his  home,'  or  principal 
home,  or  where  he  has  his  family  and  principal  place  of 
business,  from  which  there  is  no  present  intention  of 
remo\'ing  or  to  which  there  is  a  present  intention  of  later 
returning.^  "Residence,"  technically,  means  simply  a 
present  abiding  or  dwelling  for  purposes  of  business, 
health,  or  pleasure,  and  the  like  f  hence  a  person's  *'domi- 


Thompson,  In  re,  1  Wend.  43; 
Roberts,  In  re,  8  Paige  Ch.  519, 
524;  Crawford  v.  Wilson,  4  Barb. 
504,  519;  Hegeman  v.  Fox,  31  Barb. 
475;  Brown  v.  Ashbough,  10  How. 
Pr.  260,  263;  Cincinnati,  H.  &  D.  R. 
Co.  V.  Ives,  21  N.  Y.  St.  Rep.  67, 
3  N.  Y.  Supp.  895;  Weitkamp  v. 
Loehr,  53  N.  Y.  Super.  Ct.  Rep. 
(21  Jones  &  S.)  79,  11  N.  Y.  Civ. 
Proc.  Rep.  36.  N.  C. — Jones  v. 
Alsbrook,  115  N.  C.  46,  20  S.  E. 
170.  PA. — Desesbats  v.  Berquier, 
1  Bin.  336,  2  Am.  Dec.  448;  Neff 
V.  Neff,  1  Bin.  350;  Fry's  Election 
Case,  71  Pa.  St.  302,  309,  10  Am. 
Rep.  698;  Carey's  Appeal,  75  Pa. 
St.  201,  205.  S.  C. — Monroe  v.  Wil- 
liams, 37  S.  C.  81,  19  L.  R.  A.  665, 
16  S.  E.  533.  TEX.— Mclntyre  v. 
Chappell,  4  Tex.  187,  197;  Hardy  v. 
De  Leon,  5  Tex.  211,  235;  Blumer, 
Ex  parte,  27  Tex.  734,  738.  VT.— 
Fulham  v.  Howe,  62  Vt.  386,  20 
Atl.  101.  VA.— Long  v.  Ryan,  30 
Gratt.  718.  WASH. — Dormitzer  v. 
German  Sav.  &  L.  Soc,  23  Wash. 
132,  62  Pac.  802.  W.  VA.— White 
V.  Tenant,  31  W.  Va.  790,  792,  13 
Am.  St.  Rep.  896,  8  S.  E.  596; 
Andrews  v.  Mundy,  36  W.  Va.  22, 
14  S.  E.  414;  Dean  v.  Cannon,  37 
W.  Va.  123,  16  S.  E.  444.  FED.— 
Newton  v.  Mahoning  County 
Commrs.,  100  U.  S.  562,  588,  25 
L.  Ed,  710,  712;  Chambers  v. 
Prince,  75  Fed.  176;  Williams,  In 
re,  99  Fed.  544. 


Mere  intention  to  go  elsewhere 
to  live  can  not  defeat  the  legal 
residence  in  t  h  e  place  where  a 
person  is  for  the  time  being 
actually  domiciled. — G  r  a  h  a  m  v. 
Graham,  9  N.  D.  88,  81  N.  W.  44. 

3  Harvard  College  v.  Gore,  32 
Mass.  (5  Pick.)  370;  Borland  v. 
Boston,  City  of,  132  Mass.  89,  95, 
42  Am.  Rep.  424;  Hart  v.  Lindsey, 
17  N.  H.  235,  244,  43  Am.  Dec.  597; 
Jones  V.  Reser  (Okla.),  160  Pac. 
58;  Fry's  Election  Case,  71  Pa.  St. 
302,  306,  10  Am.  Rep.  698;  Ander- 
son V.  Anderson,  42  Vt.  350,  1  Am. 
Rep.  334;  Mitchell  v.  United 
States,  88  U.  S.  (21  Wall.)  350,  352, 
22  L.  Ed.  584. 

4  Zerega,  In  re,  20  N.  Y.  Supp. 
417. 

Where  family  dwells  which  man 
maintains,  may  be  said  to  be  his 
residence  or  domicile. — J  ones  v. 
Reser  (Okla.),  160  Pac.  58. 

5  CONN.— Salem,  Town  of,  v. 
Lyme,  Town  of,  29  Conn.  74,  79; 
Fairfield,  Town  of,  v.  Easton,  Town 
of,  73  Conn.  735,  49  Atl.  200.  GA.— 
Stickney  v.  Chapman,  115  Ga.  759, 
42  S.  E.  68.  IOWA— Love  v.  Cherry, 
24  Iowa  204;  Cohen  v.  Daniels,  25 
Iowa  89.  MD.— Shaeffer  v.  Gilbert, 
73  Md.  66,  20  Atl.  434.  MASS.— 
Briggs  V.  Rochester,  Inhabi- 
tants of,  82  Mass.  (16  Gray)  337. 
MINN.— Keller  v.  Carr,  40  Minn. 
428,  42  N.  W.  292.  MISS.— Alston 
V.   Newcomer,   42   Miss.   186,   192; 


466 


ch.  XVI.] 


'residence 


-IN    CALIFORNIA. 


§370 


cile,"  for  the  time  being,  may  be  in  one  place  and  his 
''residence"  in  another  place.^  Some  of  the  cases,  how- 
ever, give  to  the  term  ''domicile"  as  much  elasticity  as 
to  the  term  "residence";^  while  still  other  cases  hold  that 
the  term  "domicile,"  in  fixing  the  venue  for  the  residen- 
tiary^ class  of  actions,  is  used  in  the  sense  of  "residence."'^ 

^370.    In  California.    The  word  "residence,"  as 

used  in  the  California  Code  of  Civil  Procedure,^  is  con- 
strued to  have  the  meaning  of,  and  to  be  synonymous 
with,  the  word  "domicile,"  as  defined  in  the  preceding 
section;  that  is  to  say,  is  held  to  depend  upon  present 
intention  as  well  as  existing  fact,  and  is  the  place  where 
one  remains  when  not  called  elsewhere  on  business,  in 
quest  of  health,  for  pleasure,  and  the  like ;  the  fixed  home 
of  a  party  as  understood  by  himself,  his  friends  and  his 


Brown  v.  Crane,  69  Miss.  678,  13 
So.  855.  N.  Y.— Frost  v.  Brisbin, 
19  Wend.  11,  32  Am.  Dec.  423;  Hart 
V.  Kip,  74  Hun  412,  26  N.  Y.  Supp. 
522,  modifies  148  N.  Y.  306,  42  N.  E. 
712;  Weitkamp  v.  Loehr,  53  N.  Y. 
Super.  Ct.  Rep.  (21  Jones  &  S.) 
79,  11  N.  Y.  Civ.  Proc.  Rep.  36. 
S.  C. — Bradley  v.  Lowry,  1  Speer's 
Eq.  1,  5,  39  Am.  Dec.  142.  VT.— 
State  V.  Cunningham,  75  Vt.  332, 
55  Atl.  654.  FED.— Pacific  Mut. 
L.  Ins.  Co.  V.  Tompkins,  41  C.  C.  A. 
488,  101  Fed.  539;  Collins  v.  Ash- 
land, City  of;  112  Fed.  177. 

"Residence"  distinguished  from 
"domicle."  See  notes,  48  Am.  St. 
Rep.  712;  A  n  n.  C  a  s.  1915C,  786; 
L.  R.  A.  1915A,  406. 

Has  more  restricted  meaning, 
technically,  than  the  term  'domi- 
cile."— Chariton  County  v.  Moberly, 
59  Mo.  238,  242;  Raymond  v.  Leish- 
man,  243  P  a.  S  t.  64,  A  n  n.  C  a  s. 
1915C,  780,  L.  R.  A.  1915A,  400,  89 
Pac.  791. 

0  Gardner  v.  Board  of  Education, 


5  Dak.  259,  38  N.  W.  433;  New 
York,  City  of,  v.  Genet,  4  Hun 
(N.  Y.)  487,  489;  affirmed,  63  N.  Y. 
646;  Bartlett  v.  New  York,  City  of, 
7  N.  Y.  Super.  Ct.  Rep.  (5  Sandf.) 
44,  47;    Williams  v.  Farmers'  Gin 

6  Grain  Co.,  13  Okla.  5,  73  Pac. 
269. 

See  note,  L.  R.  A.  1915A,  413. 

"Residence"  means  more  than  a 
temporary  sojourn  in  a  p  1  a  c  e. — 
Chinese  Tax  Cases,  The,  14  Fed. 
338,  344. 

7  See:  Woodworth  v.  Bank  of 
America,  19  Johns.  (N.  Y.)  391, 
417,  10  Am.  Dec.  239;  Isham  v. 
Gibbons,  1  Bradf.  Sur.  (N.  Y.)  69, 
83 ;  Denny  v.  Sumner  County 
Board  of  Education,  134  Tenn.  468, 
L.  R.  A.  1917A,  285,  184  S.  W.  14. 

8  Brown  v.  Boulder,  18  Te.x.  431; 
Pearson  v.  West,  97  Tex.  238,  77 
S.  W.  944;  O'Connor  v.  Cook  (Tex. 
Civ.  App.),  26  S.  W.  1113. 

1  Kerr's  Cyc.  Cal.  Code  C  i  v. 
Proc,  2d  ed.,  §395;  Consolidated 
Supp.  1906-1913,  p.  1425. 


467 


§  371  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

neighbors.-  As  defined  by  tbe  decisions  of  the  state, ' '  res- 
idence indicates  permanency  of  occupation  as  distinct 
from  lodging  or  boarding  or  temporary  occupation.  If  a 
person  actually  'lives'  in  a  certain  place,  with  the  inten- 
tion of  remaining  thfere  indefinitely,  that  place  must  be 
said  to  be  his  residence.  In  other  words,  the  abiding  is 
anime  manendi  when  residence  is  acquired."^ 

'^Living"  in  a  certain  place,  with  the  intention  of  re- 
maining there  indefinitely,  makes  that  place  the  person 's 
'  *  residence ' ' ;  the  abiding  being  with  the  intention  of  re- 
maining mthin  the  meaning  of  the  statute  requiring  resi- 
dence.^ But  a  person  may  "live"  in  a  certain  place  and 
still  not  be  a  *' resident"  thereof  within  the  meaning  of 
the  statute.^  Thus,  the  mere  inhabiting  at  a  summer 
home,  or  country  house,  at  certain  seasons  of  the  year,  or 
at  certain  times,  does  not  make  the  party  inhabiting  such 
house  a  resident  of  the  county  in  w-hich  the  house  is  situ- 
ated, unless  he  has  the  present  intention  of  remaining 
there  permanently.^ 

§  371.  In  other  states.  The  doctrine  of  the  Cali- 
fornia cases,  as  given  in  the  preceding  section,  finds  sup- 
port in  the  decisions  of  other  jurisdictions.  Thus,  in 
Arizona,  ''residence,"  mthin  the  meaning  of  the  statute.^ 
signifies  permanent  establishment  at  a  certain  place,  with 
no  present  intention  or  idea  of  a  home  elsewhere.-  The 
mere  abiding  in  a  place  for  a  definite  time,  aod  until  the 
accomplishment  of  a  specific  purpose,  unaccompanied  by 
any  present  intention  to  remain  permanently,  or  indef- 
initely,  does  not   constitute  a  "residence"  within   the 

2  Younger  v.  Spreckels,  12  Cal.  5  O'Brien  v.  O'Brien,  16  Cal.  App. 
App.  175.  106  Pac.  895.                             103,  116  Pac.  692. 

„,  ^         „._,,.  6  Younger  v.  Spreckels,   12  Cal. 

3  Marston  v.  ^^  atson.  20  Cal  App.  ^^^  ^^^    ^^^ 

465.  468,  129   Pac.   611;    Smihe  v.  ^  ^riz.  Rev.  Stats.  1901,  par.  3114. 

Smilie,  24  Cal.  App.  420,  426,  141  ,  g^^^^^  ^   g^^^^^^  ^^  ^^^   ^^^  40 

Pac.  829.  L.  R,  A.  (N.  S.)  99,  123  Pac.  312; 

4  Marston  v.  Watson,  20  Cal.  App.  Andrade  v.  Andrade,  14  Ariz.  379, 
368.  465,  129  Pac.  611.  128  Pac.  813. 

468 


ch.  XVI.]  "residence" — IN   OKLAHOMA,   ETC.  §371 

statute.^  ** Residence "  and  "usual  place  of  residence," 
as  used  in  the  Kansas  statute,^  means  an  adopted  place 
of  habitation  as  a  settled  abode;  where  a  person  dwells 
with  his  family,  intending  to  remain  permanently  for  a 
time,  or  to  which  he  intends  to  return  and  live  when 
absent  f  but  does  not  include  the  place  of  abode  of  a  man 
with  his  ^^ife  and  family  for  a  transient  or  temporary 
purpose,  only.^  ''Residence,"  as  used  in  the  constitution 
of  New  Mexico,"''  qualifying  a  person  to  vote,  is  said  to  be 
a  matter  of  present  intention  as  well  as  of  an  existing 
fact;  and  that  an  intention  to  remain  in  a  certain  place 
as  long  as  the  person  can  secure  emplo^Tuent  there,  or 
until  an  opportunity  offers  to  secure  more  lucrative  re- 
muneration elsewhere,  constitutes  a  permanent  residence 
in  that  place.*  In  Oklahoma  a  ''residence"  is  said  to 
consist  of  a  settled  or  fixed  abode  of  a  character  indicating 
permanency;  an  intention  to  remain  permanently,  at  least 
for  an  indefinite  time,  for  business  or  other  purposes, 
constitutes  a  residence  within  the  meaning  of  the  statute, 
making  the  person's  place  of  abiding  his  permanent  home, 
at  least  for  the  time  being,  and  his  principal  establish- 
ment, to  which,  when  he  is  absent,  he  has  the  intention  of 
returning.^  The  residence  of  a  man  having  a  family 
which  he  maintains  is,  prima  facie,  where  the  family 
dwells;  and  a  man's  acts  and  conduct  are  more  to  be 
considered  in  determining  the  question  of  a  change  of 

3  Andrade  v.  Andrade,  14  Ariz.  8  Klutts  v.  Jones,  21  N.  M.  720, 
379,  128  Pac.  813.  See  Bechtel  v.  L.  R.  A.  1917A,  291,  158  Pac.  490. 
Bechtel,  101  Minn.  511,  12  L.  R,  A.  o  Fidelity  Safe  &  Deposit  Co.  v. 
(N.  S.)  1100,  112  N.  W.  883.  Sheahan,  37  Okla.  702,  47  L.  R.  A. 

See,  also,  note  12  L.  R.  A.  (N.  S.)  (N.  S.)  309,  133  Pac.  228;  Jones 
1101.  V.  Reser  (Okla),  IGO  Pac.  58.  See: 

4  Kan.  Gen.  Stats.  1909,  §  9037.        ^Villiams  v.  Farmers'  Gin  &  Grain 

Co.,  13  Okla.  5,  73  Pac.  269;  Berrv- 

5  0'Neil  V.  Eppler.  90  Kan.  314,      ^^^   ^  ^^g    ^^^  2 

16.  rac.   <uo.  L.    R.   A.    (N.   S.)    344,    119   N.   W. 

•'I^-  404;  Clarke,  In  re,  61  Hun  (N.  Y.) 

7  N.  M.  Const.,  art.  VII,  §  1.  619,  15  N.  Y.  Supp.  370. 

469 


§  372  CODE  PLEADING  AND  PRACTICE.  '         [Ft.  I, 

residence  than  mere  declarations  of  intent.'^"  ''Resi- 
dence" has  been  said  to  include  a  temporary  as  well  as  a 
permanent  place  of  abode,  under  the  Oregon  statute," 
which  does  not  designate  the  "place  of  residence"  as 
either  permanent  or  temporary,  "so  that  either  of  these 
qualifjdng  words  may  apply  w^itli  equal  propriety  to  such 
place"  ;^2  but  the  court  declares  that  the  Oregon  statute 
draws  a  clear  distinction  between  "domicile"  within  the 
state  and  "residence"  in  another  state.^^ 
'  Confusion  of  terms  "domicile"  and  "residence"  is 
manifest  in  the  decisions  of  the  jurisdictions  shave  dis- 
cussed, the  use  of  "residence"  being  held  synonymous 
with  "domicile,"  as  technically  defined. 

§  372.  Of  CORPORATIONS — In  general.  For  the  pur- 
poses of  an  action,  if  not  for  all  other  purposes,  the  resi- 
dence of  a  domestic  corporation  is  the  county  in  which 
its  principal  office  and  place  of  business,  mthin  the  mean- 
ing of  section  three  hundred  ninety-five  of  the  California 
Code  of  Civil  Procedure,^  and  statutes  of  like  provision. 
Thus,  the  residence  of  a  city  or  town  is  within  the  county 
in  which  it  is  located ;-  and  where  located  in  more  than 
one  county,  in  the  county  in  which  its  seat  of  government 
and  principal  place  of  business  is  situated, — that  is,  the 

10  Schultz  V.  Barrows,  8  Okla.  Co.  v.  Southern  Pac.  R.  Co.,  65  Cal. 
297,  56  Pac.  1053;  Jones  v.  Reser  394,  4  Pac.  344;  McSherry  v.  Penn- 
^Okla.),  160  Pac.  58.  See:  Keith  sylvania  Consol.  Gold  Min.  Co.,  97 
V.  Stetter,  25  Kan.  70;  North-  Cal.  637,  643,  32  Pac.  711;  Treze- 
western  &  Pac.  Hypotheek  Bank  vant  v.  Strong  Co.,  W.  R..  102 
V.  Ridpath,  29  Wash.  687,  70  Pac.  Cal.  47,  36  Pac.  395;  Gallup  v. 
jog  Sacramento  &  San  Joaquin  Drain- 

,'  n  ,,.  p  /-,   /-.  8^7  age  Dist,  171  Cal.  71,  74,  151  Pac. 

11  Ballinger  &  C.  Comp.,  §  57.  ^f^„  '  ,^.  ,  . 

1142;    Bloom  v.  Michigan  Salmon 

12  Moore.  C.  J.,  in  McFarlane  v.  ^^.^  ^^^  ^^  ^^^  ^pp  ^22.  104 
Cornelius,  43  Ore.  513,  73  Pac.  325.      p^^    334.    ^rogh  v.   Pacific  Gate- 

13  Id.  way   &   Devel.   Co.,   11    Cal.   App. 
1  Jenkins  v.  California  Stage  Co.,      237,  104  Pac.  698. 

22  Cal.  537;   Cohn  v.  Central  Pac.  2  Buck  v.   Eureka,  City  of,  97 

R.   Co.,  71   Cal.   488,   12   Pac.   498,      Cal.  135,  31  Pac.  845. 
distinguishing    California    So.    R.  See,  also,  ante,   §§  246  and  247. 

470 


ch.  XVI.] 


RESIDENCE   OF    CORPORATION. 


§372 


county  in  which  the  building  in  which  the  administrative 
and  legislative  offices  are  located.^  A  drainage  district  is 
a  resident  of  the  county  in  which  its  principal  office  or 
place  of  business  is  located  by  the  act  creating  such  dis- 
trict,'* where  the  statute  provides  that  the  reclamation 
board,  or  other  governing  body,  shall  maintain  its  office 
at  a  designated  place.^  A  railroad  corporation,  in  the 
absence  of  statute  providing  otherwise,  is  usually  re- 
garded as  having  its  residence  at  the  place  in  which  are 
located  its  main  executive  offices  or  place  of  business,* 
although  there  are  cases  to  the  effect  that  a  railroad  com- 
pany should  be  deemed  to  reside  in  each  county  in  wliich 
it  operates  its  road  or  exercises  its  corporate  franchise/ 


3  Fostoria,  City  of,  v.  Fox,  60 
Ohio  St.  340,  54  N.  E.  370.  See 
Maisch  v.  New  York,  City  of,  193 
N.  Y.  460,  86  N.  E.  458,  affirming 
127  App.  Div.  424,  111  N.  Y.  Supp. 
645. 

4  As  California  Act  approved 
May  26,  1913,  Stats.  &  Amdts., 
1913,  pp.  252-276,  amending  Act  of 
Dec.  24,  1911,  Stats.  &  Amdts., 
Extraordinary  Session,  1911,  p. 
117. 

5  Gallup  V.  Sacramento  &  San 
Joaquin  Drainage  Dist.,  171  Cal. 
71,  151  Pac.  1142. 

6  Kimmerle  v.  Topeka,  City  of, 
88  Kan.  370,  43  L.  R.  A.  (N.  S.) 
272,  128  Pac.  367;  Thorn  v.  Central 
R.  Co.,  26  N.  J.  L.  (2  Dutch.)  121; 
Western  Transportation  Co.  v. 
Schue,  19  N.  Y.  408;  Pelton  v. 
Transportation  Co.,  37  Ohio  St. 
4  5  0;  Connecticut  &  Passumpsic 
River  R.  Co.  v.  Cooper,  30  Vt.  476, 
73  Am.  Dec.  319;  Galveston,  H.  & 
S.  A.  R.  Co.  V.  Gonzales,  151  U.  S. 
496,  38  L.  Ed.  248,  14  Sup.  Ct.  Rep. 
401. 

As  to  place  of  domicile  or  resi- 
dence being  at  principal  office  or 


place  of  business,  see  note,  69 
L.  R.  A.  433. 

As  to  residence  of  railroads,  see 
Sherwood  v.  Saratoga  &  W.  R.  Co., 
15  Barb.  (N.  Y.)  650;  Vermont  R. 
Co.  v.  Northern  R.  Co.,  1  N.  Y. 
Code  Rep.  N.  S.  401,  6  How.  Pr. 
106;  Belden  v.  New  York  &  H. 
River  R.  Co.,  15  Barb.  (N.  Y.)  17; 
People  ex  rel.  Hudson  River  R.  Co. 
V.  Pierce,  31  Barb.  (N.  Y.)  138; 
Pond  V.  Hudson  River  R.  Co.,  17 
How.  Pr.  (N.  Y.)  543. 

7  See:  Davis  v.  Central  R.  Co., 
17  Ga.  323;  Bristol  v.  Chicago  & 
A.  R.  Co.,  15  111.  436,  437;  New 
Albany  &  S.  R.  Co.  v.  Haskell.  11 
Ind.  301;  Baldwin  v.  Mississippi 
&  M.  R.  Co.,  5  Iowa  518;  Richard- 
son V.  Burlington  &  M.  R.  Co..  8 
Iowa  260;  State  v.  Horn,  34  Kan. 
55G,  560,  9  Pac.  208;  State  v. 
Rogardus.  63  Kan.  2:9.  65  Pac. 
251;  Slavens  v.  Southern  Pac.  11. 
Co.,  51  Mo.  30S;  People  ex  lel. 
Buffalo  &  State  Line  R.  Co.  v. 
Fredericl-.s,  48  Barb.  (N.  Y.)  173; 
Sherwood  v.  Saratoga  &  W.  R.  Co., 
15  Barb.  (N.  Y.)  650;  Tobin  v. 
Chester   &   Lenoir  Narrow  Gauge 


471 


§  373  CODE  PLEADING  AND  PRACTICE.  [Ft.  I, 

^  373, In   Cai^ifornia.     The   matter   of   the 

venue  in  an  action  against  a  corporation  in  California  is 
fixed  by  tlie  constitution^  in  the  county  in  which  the  con- 
tract was  made  or  is  to  be  performed,  or  in  the  county  in 
wliich  the  obligation  or  liability  arises  or  the  breach 
occurs ;  or  in  the  county  in  which  the  principal  place  of 
business  of  such  corporation  is  situated,  subject  to  the 
power  of  the  court  to  change  the  place  of  trial  as  in  other 
cases.  This  provision  of  the  constitution  has  been  said  to 
render  the  provisions  of  the  Code  of  Civil  Procedure  re- 
garding the  venue  of  residentiary  actions-  permissive  and 
not  mandatory.^  The  above  section  of  the  California  con- 
stitution can  not  be  construed  as  giving  to  a  corporation 
defendant  the  same  right  to  have  a  personal  action 
against  it  tried  in  the  county  of  its  residence  as  that  which 
belongs  to  a  natural  person  who  is  the  defendant  f  but  it 
gives  to  the  plaintiff  the  right  to  elect  either  to  sue  the 
corporation  in  the  county  where  the  contract  is  made,  or 
is  to  be  performed,  or  where  the  obligation  or  liability 
arises,  or  the  breach  occurs,  or  in  the  county  where  the 
principal  place  of  business  is  situated,  subject  to  the 
power  of  the  court  to  change  the  place  of  trial  as  in  other 
cases,  for  some  reason  other  than  that  of  residence.^  The 
constitutional  provision  relates  exclusively  to  private  cor- 
porations, and  does  not  apply  to  an  action  against  a  public 

R.   Co.,  47   S.   C.   387,   58   Am,   St.  Court,    83    Cal.    491,   24   Pac.    157; 

Rep.  890,  25  S.  E.  283;  East  Ten-  McSherry  v.  Pennsylvania  Consol. 

nessee,  V.  &  G.  R.  Co.  v.  Atlantic  Gold  Min.  Co.,  97  Cal.  637,  32  Pac. 

&  F.  R.  Co.,  49  Fed.  618;    Bogiie  711;    Brady   v.    Times-Mirror   Co., 

V.    Chicago,   B.    &    Q.   R.    Co.,   193  106  Cal.  56,  39  Pac.  209;  Griffin  & 

Fed.  728.  Skelly  Co.  v.  Magnolia  &  Healds- 

1  Cal.  Const.  1879,  art.  XII,  §  16,  burg  Fruit  Cannery  Co.,   107  Cal. 
Henning's  Gen.  Laws,  2d  ed.,  p.  81.  378,  40  Pac.  495. 

Actions  for  tort  included  in  the  4  Trezevant  v.  Strong  Co.,  W.  R., 

constitutional    provision.— Tingley  102  Cal.  47,  36  Pac.  395;  Lakeshore 

V.  Times-Mirror  Co.,  144  Cal.  205,  Cattle  Co.  v.  Modoc  Land  &  Live- 

206,  77  Pac.  918.  stock  Co.,  108  Cal.  261,  41  Pac.  472. 

2  See,   ante,   §  372,  footnote   1.  ">  Trezevant  v.  Strong  Co.,  W.  R., 

3  Fresno  Nat.  Bank  v.  Superior  102  Cal.  47,  36  Pac.  395. 

472 


Ch.  XVI.]  RESIDENCE   OF    CORPORATION,  §  374 

municipal  corporation.^  However,  an  association  of  per- 
sons organized  for  a  particular  purpose,  though  not  for- 
mally incorporated,  are  within  the  provision,  and  may  be 
sued  in  damages  for  injuries  arising  from  negligence,  in 
the  county  in  which  the  negligence  occurred  and  the  liabil- 
ity arose. ''^ 

Action  against  railroad  corporation  to  recover  daniarjes 
for  injuries  sustained  may  be  tried  in  the  county  where 
the  injury  was  inflicted,  and  the  defendant  corporation 
has  no  right  to  have  the  place  of  trial  changed  to  the 
county  where  it  has  its  principal  place  of  business.* 

§  374. In  other  states — Colorado.  The  legal 

residence  of  a  domestic  corporation  in  Colorado,  within 
the  meaning  of  the  code,^  providing  that  actions  are  to  be 
tried  in  the  county  in  which  the  defendant  resides,  is  the 
county  desigTiated  in  the  articles  of  incorporation  as  the 
county  in  which  the  principal  office  of  the  corporation  is 
to  be  maintained  and  its  business  conducted ;-  but  in  an 
early  case  it  is  held  that  under  the  corporation  statute,^ 
providing  that  process  against  a  corporation  must  be 
served  in  the  county  in  which  its  general  offices  are  main- 
tained, must  be  read  and  construed  in  connection  with  the 
section  of  the  code,  providing,  in  general  terms,  that 
suit  may  be  brought  in  the  first  instance  in  the  county  in 
which  the  plaintiff  resides  or  in  the  county  in  which  the 
contract  was  to  be  performed,^  and  that  an  action  against 
a  corporation,  on  a  contract,  may  be  brought  in  the  county 
in  which  the  contract  was  to  have  been  performed,  al- 
though the  defendant's  main  office  and  place  of  business 
was  in  another  county.^ 

6  Buck  V.  Eureka,  City  of,  97  Cal.  2  Woods  Gold   Min.   Co.   v.   Roy- 

135,  31  Pac.  845.  ston.  46  Colo.   191.   103   Pac.  291. 

TKendrick  v.  Diamond  Creek  ^  ^^^^    ^.^^    g^^^^    ^^^.,    j,    ^3.^ 

Consol.  Gold  Min.  Co.,  94  Cal.  137,         ^^ 
29  Pac    3^4 

s  Lewis"'  V.  South  Pac.  Coast  R.  '  See  Mills'  Ann.  Code.  §  24. 

Co..  66  Cal.  209,  5  Pac.  79.  •'''  Denver  &  New  Orleans  Const. 

1  Mills'  Ann.  Code,  §  27.  Co.  v.  Stout,  8  Colo.  61,  5  Pac.  627. 

473 


§§  375,376  CODE  pleading  and  practice.  [Ft.  I, 

§  375. Idaho.    Under  the  Idaho  statute/ 

a  domestic  corporation  has  no  absolute  right  to  have  all 
actions  against  it  tried  in  the  county  in  which  its  prin- 
cipal office  is  located  and  its  business  carried  on;-  conse- 
quently where  a  corporation  is  sued  in  the  county  in 
which  the  contract  was  entered  into,  the  corporation  is 
not  entitled,  as  an  absolute  right,  to  a  transfer  of  the 
trial  to  the  county  in  which  its  main  office  is  located  and 
its  business  conducted.^ 

§  376. Nebraska.    Under  the  provisions 

of  the  statute  regulating  the  venue  in  actions  against  do- 
mestic corporations  which  are  of  a  transitory  nature  and 
belonging  to  the  residentiary  class,  in  Nebraska,^  other 
than  carriers,  railroads  and  other  specified  corporations 
governed  by  other  sections  of  the  Code  of  Civil  Pro- 
cedure,^  a  domestic  corporation  may  be  sued  in  the  place 
provided  for  in  the  code,  only,^ — which  is  any  county  in 
which  it  maintains  a  place  of  business.*  The  subsequent 
provisions  of  the  code  as  to  the  manner  of  serving  process 
upon  a  corporation,^  do  not  add  to  the  enumerations  of 
section  fifty-five  of  the  places  in  which  suit  may  be 
brought  against  a  corporation.*^  An  agent  or  officer  of  the 
corporation  temporarily  employed  in  transacting  business 
in  a  county  other  than  the  one  in  which  the  principal 
office  is  located,  does  not  subject  the  corporation  to  the 
jurisdiction  of  the  courts  of  such  county ;'''  and  where  an 
agent  of  a  corporation,  who  has  an  office  and  place  of 
business  for  the  corporation  in  another  county,  employs 

1  Idaho  Rev.  Codes,  §  2792.  Snyder,  39  Neb.  632,  58  N.  W.  149; 

2  Smith  V.  Inter-Mountain  Auto  Fremont  Butter  &  Egg  Co.  v.  Kil- 
Co.,  25  Idaho  212,  136  Pac.  1125.  lian,  39  Xeb.  636,  58  N.  W.  150. 

3  Id.  5  Neb.  Code  Civ.  Proc,  §  73. 

1  Neb.  Code  Civ.  Proc,  §  55.  6  W  e  s  t  e  rn    Travelers'    Accd. 

2  Id.,  §§  56-58.  Assoc,   v.   Taylor,   62  Neb.   783,   87 

3  W  e  s  t  e  rn     Travelers'     Accd.      N.  W.  950. 

Assoc.  V.  Taylor.  62  Neb.   783,  87  7  Security  Mut.  Life  Ins.  Co.  of 

N.  W.  950.  Lincoln  v.  Ress,  76  Neb.  141,  lOG 

4  Fremont  Butter  &  Egg  Co.  v.      N.  W.  1037. 

474 


C'h.  XVI.]  RESIDENCE   OF   CORPORATION.  §§  377,  o78 

a  person  to  represent  him  in  a  county  in  wliich  the  cor- 
poration has  no  place  of  business  and  maintains  no  office, 
the  residence  of  the  person  thus  employed  by  the  agent 
is  purely  personal  to  himself,  and  does  not  confer  juris- 
diction on  the  courts  of  the  county  in  which  he  resides 
over  the  corporation.* 

<^  377. Oregon.  Under  the  provisions  of 

tlie  Oregon  statute,^  requiring  actions  to  be  commenced 
and  tried  in  the  county  in  which  the  defendants,  or  either 
of  them  may  reside,  or  may  be  found,  a  transitory  action 
of  the  residentiary  class  against  a  corporation  organized 
under  the  laws  of  the  state  is  to  be  brought  and  tried  in 
the  county  in  which  the  corporation  has  its  principal  office 
and  place  of  business,  or  in  the  county  in  which  the  cause 
of  action  arose.-  The  complaint  failing  to  disclose  where 
the  cause  of  action  arose,  the  action  must  be  commenced 
in  the  county  in  which  the  corporation  has  its  principal 
office  and  place  of  business.^ 

§  378. South  Dakota.     The  provisions 

of  the  South  Dakota  statute,^  regarding  the  venue  in  the 
residentiary  class  of  actions,  applies,  alike,  to  natural  per- 
sons and  to  corporations,-  and  the  venue  of  the  action 
against  a  domestic  corporation  is  in  the  judicial  district 
in  which  it  has  its  principal  office  and  place  of  business, 
not  at  a  place  at  which  it  happens  to  transact  business  ;•'' 
and  in  those  cases  in  which  an  action  is  commenced  else- 
where, the  corporation  will  be  entitled  to  have  tlio  place 
of  trial  changed  to  the  judicial  district  in  which  it  had  its 

sid.  Power  Co.,  61  Ore.  592.   123  Pac. 

1  Ore.  Civ.  Code,  §44;   L.  O.  L.,      906. 

§  44.  1  S.  D.  Code  Civ.  Proc,  §  101.  as 

2  Holgate  V.  Oregon  Pac.  R.  Co.,      amended  by  Laws  1909,  ch.  283. 

16  Ore.  123,  17  Pac.  859;    Winter  2  Ivanusch  v.  Great  Northern  R. 

V.  Union  Packing  Co.,  51  Ore.  97,      Co.,  20  S.  D.  158,  128  N.  W.  333. 
93  Pac.  930.  3  Mullen  v.  Northern  Accd.  Ins. 

8  Davis   v.   Oregon    Placer    <&      ro.,  26  S.  D.  402,  128  N.  W.  483. 

475 


§§  379,  380       CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

principal  office  at  tlie  time  of  the  commencement  of  the 
action,* 

§379. Utah.    The  rule  as  to  the  venue 

of  actions  against  domestic  corporations  under  the  stat- 
utes of  Utah^  is  the  same  as  in  California,^  requiring 
transitory  actions  of  the  residentiary  class  to  be  tried  in 
the  district  in  which  the  corporation  had  its  principal  office 
and  place  of  business  at  the  time  of  the  commencement 
of  the  action  and  if  the  action  is  not  brought  in  such  dis- 
trict, the  corporation  will  be  entitled  to  a  transfer  of  the 
place  of  trial  to  the  proper  district.' 

§  380. Washington.  Under  the  provis- 
ions of  the  Washington  statute  a  domestic  corporation 
may  be  sued  in  any  county  in  which  it  has  an  office,  or  in 
which  any  person  resides  upon  whom  process  against  the 
corporation  may  be  served,^  or  in  any  county  in  which  it 
does  business.^  Where  suit  is  commenced  against  a  cor- 
poration in  a  wrong  county  the  cause  may  be  tried  therein, 
unless  the  corporation  files  an  affidavit  of  merits  and 
demands  a  removal  of  the  trial  of  the  cause  to  the  proper 
county.^  Yet,  where  a  suit  is  commenced  in  a  county  in 
which  it  has  no  office  and  has  not  done  business,  and  no 
person  resides  in  that  county  upon  whom  service  of  proc- 
ess against  the  corporation  may  be  made,  a  judgment  by 
default  in  such  county  will  be  void,  although  a  proper 
agent  was  duly  served  with  the  process  in  another 
county.*     Sending  an  agent  into  a  county  in  which  no 

4  Gotthelf   V.    Merchants'    Bank,  4  McMaster  v.  Advance  Thresher 

33  S.  D.  259,  145  N.  W.  542.  Co.,  10  Wash.  147,  38  Pac.  760. 

,T    J       /~i  T  1000   Rome  Action    commenced    in    wrong 

1  Under  Comp.  Laws  1888,  §  3196.  .  ^ 

county    against    a    corporation, 

2  See,  ante,  §  373.  court  of  that  county  has  no  juris- 

3  Crookston  v.  Centennial  Eureka      diction  to  enter  judgment  in  the 
Min.  Co.,  13  Utah  117,  44  Pac.  714.      action;  and  it  is  more  than  a  tech- 

1  Wash.  Code  Civ.  Proc,  §  160.        "*^^^  ^'•'•°'"  ^°  ^'^^«'"  Judgment  by 

default  without  notice  after  ap- 

2  Rem.  &  Bal.  Code,  §  206.  pearance.— Richman  v.  Wenah  Co., 
8  Wash.  Code  Civ.  Proc,  §  162.        74  Wash.  370,  133  Pac.  467. 

47G 


ell.  XVI  ]  NONRESIDENT    DEFENDANT.  §  381 

office  is  maintained  to  purchase  lumber,  and  purchasing 
lumber  in  such  county,  constitutes  doing  business  in  that 
county  within  the  provisions  of  the  statute,^  although  the 
corporation  has  its  main  office  and  principal  place  of  busi- 
ness in  another  county;^  but  the  fact  that  a  corporation 
organized  to  excavate  and  fill  in  certain  public  lands 
under  provisions  of  statute,'^  for  which  work  payment  was 
to  be  received  in  certificates  as  the  work  progressed,  which 
certificates  they  procured  to  be  underwritten  by  a  trust 
company  residing  elsewhere,  receives  and  causes  to  be 
recorded  in  accordance  with  provisions  of  law  the  cer- 
tificates issued  as  the  work  progresses  and  then  transmits 
the  certificates  to  the  trust  company,  does  not  constitute 
doing  business  by  the  trust  company  in  the  county  in 
which  the  w^ork  is  done  so  as  to  subject  the  trust  company 
to  an  action  in  that  county.* 

§  381.  Nonresident  and  absconding  defendants — In 
GENERAL. — The  general  rule  is  that,  in  the  absence  of  stat- 
utory provisions  controlling  otherwise,  a  nonresident  de- 
fendant may  be  sued  in  any  county  in  which  he  may  be 
found  or  in  which  service  of  process  may  be  had;^  and 
under  the  provisions  of  the  statutes  in  some  jurisdictions 
an  action  against  a  nonresident  of  the  state  temporarily 
wthin  it  need  not  be  commenced  in  the  county  in  which 
the  service  of  the  process  is  made,  but  the  venue  may  be 
laid  in  any  county  which  the  plaintiff  may  select.^  Of 
course  an  action  against  a  nonresident  of  the  state  can 
be  brought  in  any  county  in  w^hich  he  has  property,^  and 

5  Rem.  &  Bal.  Code,  §  206.  176;     Charles    v.    Amos,    10    Colo. 

6  Strandall  v.  Alaska  Lumber  272,  14  Pac.  114;  Clark  v.  Willis, 
Co.,  73  Wash.  67,  131  Pac.  211.  44  Okla.  303,  144  Pac.  587;    Steed 

T  Wash.  Act  March  9,  1893,  Laws  v.  Harvey,  18  Utah  367,  72  Am.  St. 

1893,  p.  241.  Rep.  789,  54  Pac.  1011. 

8  State   ex   rel.    Seattle   &   Lake  2  Fratt  v.   Wilson,   30   Ore.   542, 

Washington  Waterway  Co.  v.  Su-  48  Pac.  356;    Brown  v.  Lewis,   50 

perior  Court,  86  Wash.  657,  150  Ore.  358,  92  Pac.  1058. 
Pac.  1149.  3  Hembrow  v.   Winsor,   87   Kan. 

1  Wagner   v.   Hallack,    3    Colo.  714,  125  Pac.  22. 

477 


§  382  CODE  PLEADING  AND  PRACTICE.  [Pt.  T, 

the  property  is  attaclied;  but  in  such  a  case  the  action 
will  be  in  rem  and  not  in  personam,  will  bind  the  property 
for  any  judgment  that  may  be  rendered,  but  there  can  be 
no  personal  judgment  against  the  defendant  unless  lie 
appears  and  submits  to  the  jurisdiction.^  Under  a  stat- 
ute providing  that  action  may  be  brought  against  a  non- 
resident in  any  county  in  which  he  has  property  or  debts 
owing  to  him,  or  in  which  he  may  be  found,  when  it  does 
not  appear  that  the  defendant  has  property  or  debts 
owing  to  him  in  the  county  where  suit  is  brought,  such 
action  can  not  be  instituted  before  he  enters  the  county." 

§  382.    A  NONEESiDENT  PLAINTIFF.    The  doctriuc  as 

to  venue  in  actions  against  nonresident  defendants  is  the 
same  whether  the  plaintiff  be  a  resident  or  a  nonresident 
of  the  state  of  the  forum,^  and  even  though  the  cause  of 
action  arose  in  a  foreign  country,  or  upon  the  high  seas.- 
But  in  those  cases  in  which  the  cause  of  action  arose  in  a 
foreign  country,  there  is  a  discretion  which  the  court  may 
exercise  in  entertaining  jurisdiction  of  the  action,^  and 

4  See,  ante,  §§  180,  247.  state    involved    this    is    especially 

5  Lamb  v.  Finch,  87  Neb.  565,  true. — Olympia  Min.  &  Mill.  Co.  v. 
127  N.  W.  903.  Kerns,  64  Wash.  550,  117  Pac.  260. 

1  Steed  V.  Harvey,  18  Utah  367,  Action  for  breach  of  contract  of 
72  Am.  St,  Rep.  789,  54  Pac.  1011.      warranty   and  seisin  in   deed,  the 

Citizen  of  territory  included  and  title  to  the  land  is  not  affected. — 

entitled  to  sue  in  courts  of  state.  Coleman   v.    Lucksinger,    224    Mo. 

—Southern    Pacific   R.    Co.    v.  1,  26  L.  R.  A.  (N.  S.)  934,  123  S.  W. 

Dusablon,  48   Tex.   Civ.  App.   207,  441. 
106  S.  W.  766.  Injury  to  or  trespass  upon  lands 

2  Eingartner  v.  Illinois  Steel  Co.,  outside  of  the  state,  action  for 
94  Wis.  70,  59  Am.  St.  Rep.  859,  damages  not  maintainable. — Pitts- 
34  L.  R,  A.  503,  68  N.  W.  664.  See:  burgh,  C.  C.  &  St.  L..  R.  Co.  v. 
Reeves  v.  Southern  R.  Co.,  121  Ga.  Jackson,  83  Ohio  St.  18,  21  Ann. 
561,  2  Ann.  Cas.  207,  70  L.  R.  A.  Cas.  1313,  93  N.  E.  260;  Morris  v. 
513,  49  S.  E.  674;  Great  Western  Missouri  Pac.  R.  Co.,  78  Tex.  17, 
R.  Co.  V.  Miller,  19  Mich.  312;  22  Am.  St.  Rep.  17,  9  L.  R.  A.  349, 
Gardner  v.  Thomas,  14  Johns.  14  S.  W.  228;  Missouri  Pac.  R.  Co. 
(N.  Y.)  134,  7  Am.  Dec.  445;  John-  v.  Cullers,  81  Tex.  388,  13  L.  R.  A. 
son  V.  Dalton,  1  Cow.   (N.  Y.)   513,  545,  17  S.  W.  19. 

13  Am.  Dec.  564.  Compare:   Smith  v.  Southern  R. 

s  Title   to    land  in  such  other      Co.,  136  Ky.  162,  26  L.  R.  A.  (N.  S.) 

47S 


ell.  XVI.] 


NONRESIDENT   PI.AINTIFF. 


U82 


may  dismiss  the  action,  if  for  any  reason  it  seems  im- 
proper for  the  court  to  take  jurisdiction/  This  right  of  a 
resident  of  another  state  to  maintain  an  action  in  the 
forum  of  a  sister  state  against  a  nonresident  of  the  latter 
state,  is  guaranteed  by  the  federal  constitution,  which 
provides  that  ''the  citizens  of  each  state  shall  be  entitled 
to  all  the  privileges  and  immunities  of  citizens  of  the 
several  states,"^  and  this  is  construed  to  include  the  right 
to  institute  actions*^  against  nonresidents  of  the  state  of 
the  forum. ■^  And  the  action  may  be  thus  brought  under 
the  laws  of  the  state  or  country  in  which  the  cause  of 


927,  123  S.  W.  678,  holding  that 
action  for  negligent  explosion  in- 
juring building  across  the  line  in 
another  state  may  be  maintained 
in  forum  of  state  in  which  explo- 
sion occurred. 

As  to  forum  in  which  action  for 
damages  to  land  may  be  brought, 
see  notes,  21  Ann.  Cas.  1314;  26 
L.  R.  A.  (N.  S.)   933. 

4  Bradbury  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  149  Iowa  59,  40  L.  R.  A. 
(N.  S.)  684,  128  N.  W.  1;  Morris 
V.  Missouri  Pac.  R.  Co.,  78  Tex.  17, 
22  Am.  St.  Rep.  17,  9  L.  R.  A.  349, 
14  S.  W.  228;  Olympia  Min.  &  Mill. 
Co.  V.  Kerns,  64  Wash.  550,  117 
Pac.  260;  Eingartner  v.  Illinois 
Steel  Co.,  94  Wis.  70,  59  Am.  St. 
Rep.  859,  34  L.  R.  A.  503,  68  N.  W. 
664. 

5  U.  S.  Const.,  art.  IV,  §  2,  9  Fed. 
Stats.  Ann.  1st  ed.,  pp.  158  et  seq. 

6  Bradbury  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  149  Iowa  59,  40  L.  R.  A. 
(N.  S.)  684,  128  N.  W.  1;  Williams 
V.  Pope  Mfg.  Co.,  52  La.  Ann.  1432, 
78  Am.  St.  Rep.  390,  50  L.  R.  A. 
822,  27  So.  851;  Cofrade  v.  Gart- 
ner, circuit  judge,  79  Mich.  332, 
342,  7  L.  R.  A.  511,  44  N.  W.  623; 
Daniels  v.  Detroit,  G.  H.  &  M.  R. 
Co.,  163  Mich.  473,  128  N.  W.  797: 


Lemmon  v.  People,  20  N.  Y.  562, 
608;  Southern  Pac.  R.  Co.  v. 
Dusablon,  48  Tex.  Civ.  App.  207, 
106  S.  W.  766;  Paul  v.  Virginia,  75 
U.  S.  (8  Wall.)  168,  19  L.  Ed.  357; 
Ward  V.  Maryland,  79  U.  S.  (12 
Wall.)  418,  430,  20  L.  Ed.  449,  452-3; 
Cole  V.  Cunningham,  133  U.  S.  107, 
114,  33  L.  Ed.  538,  541,  10  Sup.  Ct. 
Rep.  269;  Mason  v.  West  Branch 
Boom  Co.,  3  Wall.  Jr.  252,  Fed. 
Cas.  No.  9232;  Corfield  v.  Coryell, 
4  Wash.  C.  C.  371,  Fed.  Cas.  No. 
3230. 

T  Eingartner  v.  Illinois  Steel  Co.. 
94  Wis.  70,  59  Am.  St.  Rep.  859. 
34  L.  R.  A.  503.  68  N.  W.  664.  See: 
Reeves  v.  Southern  R.  Co.,  121  Ga. 
565,  2  Ann.  Cas.  207,  70  L.  R.  A. 
521,  49  S.  E.  674;  Barrell  v.  Ben- 
jamin, 15  Mass.  354;  State  Bank 
v.  Moxson,  123  Mich.  253,  81  Am. 
St.  Rep.  196,  82  N.  W.  83;  Slight 
V.  Swanson,  127  Mich.  439,  86  N.  W. 
1010;  Pullman  Palace  Car  Co.  v. 
Lawrence,  74  Miss.  800,  22  So.  53; 
Morgan  v.  Neville,  74  Pa.  St.  57; 
Southern  Pac.  R.  Co.  v.  Graham, 
12  Tex.  Civ.  App.  568,  34  S.  W. 
135;  Thoen  v.  Harnstrom,  98  Wis. 
233,  73  N.  W.  1011;  Smith  v.  Em- 
pire State  Idaho  Min.  &  Devel.  Co., 
127  Fed.  464. 
79 


§382 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  r, 


action  sued  upon  arose,*  and  be  prosecuted  under  the  lex 


Attachment  by  nonresident 
against  property  of  nonresident. — 
Morgan  v.  Neville,  74  Pa.  St.  57; 
Thoen  v.  Harnstrom,  98  Wis.  233, 
73  N.  W.  1011. 

8  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Haist,  71  Ark.  258,  100  Am,  St. 
Rep.  65,  72  S.  W.  893;  Negaubauer 
V.  Great  Northern  R.  Co.,  92  Minn. 
184,  104  Am.  St.  Rep.  674,  99  N.  W. 
620;  Vawter  v.  Missouri  Pac.  R. 
Co.,  84  Mo.  679,  54  Am.  Rep.  105; 
McGinnis  v.  Missouri  Car  & 
Foundry  Co.,  174  Mo.  225,  97  Am. 
St.  Rep.  553,  73  S.  W.  586;  Loucks 
V.  Standard  Oil  Co.  (N.  Y.),  120 
N.  E.  198;  Usher  v.  New  Jersey  R. 
Co.,  126  Pa.  St.  206,  12  Am.  St. 
Rep.  863,  4  L.  R.  A.  261,  17  Atl. 
597;  Southern  Pac.  Co.  V.  Dusablon, 
48  Tex.  Civ.  App.  207,  106  S.  W. 
766;  Robertson  v.  Chicago,  St.  P., 
M.  &  O.  R.  Co.,  122  Wis.  66,  106 
Am.  St.  Rep.  925,  66  L.  R.  A.  919, 
99  N.  W.  343. 

Person  designated  in  foreign 
statute,  only,  can  maintain  the 
action;  to  permit  legislature  of 
forum  to  authorize  another  person 
than  the  one  provided  in  such  law 
to  maintain  an  action  and  enforce 
the  right  given  would  be  to  invest 
such  law  of  the  forum  with  extra- 
territorial effect. — M  c  G  i  n  n  i  s  v. 
Missouri  Car  &  Foundry  Co.,  174 
Mo.  225,  97  Am.  St.  Rep.  553,  73 
S.  W.  586.  See:  Buckles  v.  Filers, 
72  Ind.  220,  37  Am.  Rep.  138;  Mc- 
Carthy V.  Chicago,  R.  I.  &  P.  R. 
Co.,  18  Kan.  46,  26  Am.  Rep.  742; 
Taylor  v.  Pennsylvania  Co.,  78  Ky. 
348,  39  Am.  Rep.  244;  Richardson 
V.  New  York  Cent.  R.  Co.,  98  Mass. 
85;  Vawter  v.  Missouri  Pac.  R.  Co., 
84  Mo.  679,  54  Am.  Rep.  105; 
Woodard  v.  Michigan  S.  &  N.  I.  R. 
Co..  10  Ohio  St.  121. 


This  doctrine  sometimes  defeats 
all  right  of  action  in  a  foreign 
state.  Thus,  where  the  lex  loci 
delicti  provides  that  an  action  for 
negligent  injury  causing  death,  or 
a  wrongful  death,  may  be  main- 
tained by  the  personal  representa- 
t  i  V  e  of  the  decedent,  only,  an 
administrator  appointed  in  the 
state  of  the  forum  can  not  main- 
tain the  action  under  the  lex  loci 
delicti  in  such  foreign  state. — Mc- 
Ginnis V.  Missouri  Car  &  Foundry 
Co.,  174  Mo.  225,  97  Am.  St.  Rep. 
553,  73  S.  W.  586;  Vawter  v.  Mis- 
souri Pac.  R.  Co.,  84  Mo.  679,  54 
Am.  Rep.  105. 

Contra:  Stoeckman  v.  Terre 
Haute  &  I.  R.  Co.,  15  Mo.  App.  503; 
Leonard  v.  Columbia  Steam  Nav. 
Co.,  84  N.  Y.  48,  38  Am.  Rep.  491; 
Dennick  v.  Central  R.  Co.  of  New 
Jersey,  103  U.  S.  11,  26  L.  Ed.  439. 

An  administrator  appointed  in 
the  state  where  the  act  complained 
of  and  the  death  occurred  can  not 
sue  in  a  foreign  state,  because  he 
h  a  s  no  extraterritorial  rights.  — 
Vawter  v.  Missouri  Pac.  R.  Co.,  81 
Mo.  679,  54  Am.  Rep.  105. 

And  no  one  other  than  the  for- 
eign administrator  can  maintain 
an  action,  because  the  lex  loci 
delicti  provides  that  the  personal 
representative,  only,  may  maintain 
the  action. — Oates  v.  Union  Pac. 
R.  Co.,  104  Mo.  514,  24  Am.  St. 
Rep.  348,  16  S.  W.  487. 

See  very  comprehensive  discus- 
sion in  8  R.  C.  L.,  p.  756,  §§  44-54. 

Remarkable  utterance  anent  the 
doctrine  of  locus  regit  actum  found 
in  the  Yale  Law  Journal  for 
November,  1918,  commenting 
on  the  commonplace  decision 
in  Loucks  v.  Standard  Oil  Co. 
(N.  Y.),  120  N.  E.  198,  can  not  to 


4:80 


i 


ch.  XVI.] 


NONRESIDENT   PLAINTIFF. 


§383 


fori,  pro\dded  such  statute  is  pleaded,^  althougli  such 
statute  is  in  derogation  of  the  common  law.^*^ 

AJ'iPiiage  is  not  a  bar  under  the  rule;^^  it  is  not  neces- 
sary to  prove  citizenship  before  the  commencement  of  the 
action.^-  Thus,  a  nonresident  widow  of  a  resident  alien 
with  first  papers,  living  in  a  foreign  land,  but  intending 
to  join  her  husband  in  the  state  of  the  forum,  where  he 
was  killed  by  wrongful  or  negligent  act,  may  there  main- 
tain an  action  for  damages  for  his  wrongful  death.^^ 

§  383. Illustkations  of  doctrine.  As  illus- 
trating the  doctrine  as  to  venue  in  transitory  actions, 
between  parties  all  of  whom  are  nonresidents  of  the  state, 


overlooked,  because  so  startling 
and  so  contrary  to  every  estab- 
lished principle  of  every  knovi^n 
system  of  law  in  all  civilized 
nations,  tbe  asseveration  being 
that:  "Aside  from  existing  systems 
o  f  positive  law  —  constitutional, 
i-.tatutory,  or  judge-made — it  seems 
clear  that  there  is  no  inherent 
reason  why  the  law  of  any  sov- 
0 reign  nation — England,  for  exam- 
ple— m  ay  not,  if  the  sovereign 
English  Parliament  or  the  appro- 
priate English  court  so  decree, 
attach  any  legal  consequences 
whatever  to  any  state  of  facts 
whatever,  including  acts  done  in 
other  countries,  even  by  persons 
not  citizens  or  residents  of  Eng- 
land. This  simply  amounts  to 
saying  that,  a  sovereign  nation, 
England  may  determine  what  legal 
consequences  shall,  in  England,  by 
English  courts,  be  held  to  attach 
to  a  given  state  of  facts,  if  in  any 
way  ao  English  court  is  presented 
with  a  case  involving  them." 

0  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Haist,  71  Ark.  258,  100  Am.  St. 
Rep.  65,  72  S.  W.  893;  Wabash 
R.  Co.  V.  Hassett,  170  Ind.  382,  83 
N.  E.  705, 

1  Cod?  PI.  and  Pr.— 31  ^g]^ 


Pleading  in  hasc  verba  is  not 
essential;  it  is  sufficient  to  set  out 
the  substance  and  effect  of  the  lex 
loci  delicti. — St.  Louis,  L  M.  & 
S.  R.  Co.,  71  Ark.  258,  100  Am.  St. 
Rep.  65,  72  S.  W.  893.  See:  Stacy 
V.  Becker,  2  111.  (1  Scam.)  418; 
Louisville,  N.  A.  &  C.  R.  Co.,  108 
111.  628;  Consolidated  Tank  Line 
Co.  V.  Collier,  148  111.  266,  39  Am. 
St.  Rep.  181,  35  N.  E.  756. 

10  Bain  v.  Northern  Pac.  R.  Co., 
120  Wis.  416,  98  N.  W.  241. 

11  See:  Kelly ville  Coal  Co.  v. 
Petraytis,  195  111.  215,  88  Am.  St. 
Rep.  191,  63  N.  E.  94;  Mulhall  v. 
Fallon,  176  Mass.  266,  79  Am.  St. 
Rep.  309,  54  L.  R.  A.  934,  57  N.  E. 
386;  Renuld  v.  Commodore  Min. 
Co.,  89  Minn.  41,  99  Am.  St.  Rep. 
534,  93  N.  W.  1057. 

Contra:  Deni  v.  Pennsylvania 
R.  Co.,  181  Pa.  St.  525,  59  Am.  St. 
Rep.  676,  37  Atl.  558;  Mc:\lillan 
v.  Spider  Lake  Sawmill  &  Lumber 
Co.,  115  Wis.  332,  95  Am.  St.  Rep. 
497,  60  L.  R.  A.  589,  91  N.  W.  979. 

12  Southern  Pac.  R.  Co.  v.  Allen, 
48  Tex.  Civ.  App.  71,  106  S.  W. 
441. 

13  I>aconte  v.  Kenosha,  149  Wis. 
347,  135  N.  W.  843. 


§383 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  I, 


as  laid  down  in  the  preceding  section,  tlie  following  in- 
stances may  be  cited :  Action  by  passenger  against  for- 
eign railroad  company  for  injuries  sustained  in  a  collision 
occurring  in  another  state  ;^  action  to  collect  debt  on  at- 
tachment- or  garnishment^  process ;  action  for  death  from 
Avrongful  act,  neglect  or  default;*  action  on  foreign  con- 
tract,^ performable  out  of  state  of  forum  ;^  action  for 
damages  for  negligent  act  in  foreign  jurisdiction"  by 
employees  of  a  common  master,  they  not  being  fellow- 
employees,^  or  they  being  fellow-servants  f  action  for  in- 
jury to  personal  property  occurring  out  of  the  state  of 
the  forum  ;^*^  action  for  malicious  prosecution  and  false 
imprisonment  in  the  state  of  the  forum  ;^^  action  for 
damages  for  negligent  explosion  causing  injury  to  build- 
ing in  another  state  ;^2  tort  action^^  for  injuries  inflicted 
in  a  foreign  state,^*  and  the  like. 


1  Denver  &  R.  G.  R.  Co.  v.  Roller, 
41  C.  C.  A.  28,  100  Fed.  744,  49 
L.  R.  A.  82. 

2  Morgan  v.  Neville,  74  Pa.  St. 
57. 

3  Thoen  v.  Harnstrom,  98  Wis. 
233,  73  N.  W.  1011. 

4  Wabash  R.  Co.  v.  Hassett,  170 
Ind.  382,  83  N.  E.  705;  McGinnis 
v.  Missouri  Car  &  Foundry  Co., 
174  Mo.  225,  97  Am.  St.  Rep.  553, 
73  S.  W.  586;  Robertson  v.  Chi- 
cago, St.  P.,  M.  &  O.  R.  Co.,  122 
Wis.  66,  106  Am.  St.  Rep.  925,  66 
L.  R.  A.  919,  99  N.  W.  433;  Laconte 
V.  Kenosha,  149  Wis.  347, 135  N.  W. 
843. 

5  S  t  a  t  e  Bank  v.  Moxson,  123 
Mich.  253,  81  Am.  St.  Rep.  196,  82 
N.  W.  32  (in  county  in  which 
debtor's  property  found). 

As  to  venue  in  action  for  breach 
of  foreign  contract,  see  note,  26 
L.  R.  A.  (N.  S.)  928. 


6  Western  Union  Tel.  Co.  v. 
Russell,  12  Tex.  Civ.  App.  85,  33 
S.  W.  708. 

7  Daniels  v.  Detroit,  G.  H.  & 
M.  R.  Co.,  163  Mich.  473,  128  N.  W. 
797. 

8  Eingartner  v.  Illinois  Steel  Co., 
94  Wis.  70,  59  Am.  St.  Rep.  859,  34 
L.  R.  A.  503,  68  N.  W.  664. 

9  MacCarthy  v.  Whitcomb,  110 
Wis.  123,  85  N.  W.  707. 

10  Southern  Pac.  R.  Co.  v. 
Graham,  12  Tex.  Civ.  App.  568,  34 
S.  W.  135. 

11  Williams  v.  Pope  Mfg.  Co.,  52 
La.  Ann.  1432,  78  Am.  St.  Rep.  390, 
50  L.  R.  A.  822,  27  So.  851. 

12  Smith  V.  Southern  R.  Co.,  136 
Ky.  162,  26  L.  R.  A.  (N.  S.)  927, 
123  S.  W.  678. 

13  Reeves  v.  Southern  R.  Co.,  121 
Ga.  565,  2  Ann.  Gas.  207,  70  L.  R.  A. 
521,  49  S.  E.  674. 

14  Pullman  Palace  Car  Co.  v. 
Lawrence,  74  Miss.  800,  22  So.  53. 


482 


Ch.  XVI,]  FOREIGN    CORPORATION    PLAINTIFF.  §§  384,  385 

§  384.    California  doctrine.  Under  the  California 

Code  of  Civil  Procedure  if  none  of  the  defendants  reside 
in  the  state,  or  if  residing  in  the  state  and  the  county  in 
which  they  reside  is  unknown  to  the  plaintiff,  the  same 
may  be  tried  in  any  county  which  the  plaintiff  may  desig- 
nate in  his  complaint;  and  if  the  defendant  is  about  to 
depart  from  the  state,  such  action  may  be  tried  in  any 
county  where  either  of  the  parties  reside,  or  service  is 
had ;  subject,  however,  to  the  power  of  the  court  to  change 
the  place  of  trial. ^  This  provision  of  the  statute  does  not 
defeat  a  defendant's  right  to  have  a  transitory  action  of 
the  residentiary  class  tried  in  the  county  of  his  residence, 
and  where  the  action  is  brought  in  another  county,  a  mere 
showing  by  the  plaintiff  that  he  was  ignorant  of  the  place 
of  residence  of  the  defendant  when  the  action  was  com- 
menced without  showing  that  he  used  all  proper  diligence 
to  ascertain  his  place  of  residence  before  commencing  the 
action  and  failed,  does  not  entitle  the  plaintiff,  under  the 
above  provision  of  the  Code  of  Civil  Procedure,  to  have 
the  trial  of  the  action  in  the  county  designated  by  him, 
which  is  other  than  that  of  the  residence  of  the  def  eudant.- 
And  the  same  rule  prevails  in  other  states.^ 

§  385.   Foreign  corporations.  The  rules  laid  down 

in  the  preceding  section  apply  with  equal  force  to  for- 
eign corporations  in  all  transitory  actions  of  the  residen- 
tiary class. ^    That  is  to  say,  a  foreign  corporation,  doing 

1  Kerr's  Cyc.  Cal.  Code  C  i  v.  Super.  Ct.  Rep.  (24  Jones  &  S.) 
Proc,  2d  ed.,  §395;  Consolidated  108,  15  N.  Y.  Civ.  Proc.  Rep.  88, 
Supp.  1906-1913,  p.  1425.  1    N.   Y.    Supp.   418;    Anglo-Amer- 

2  Loehr  v.  Latham,  15  Cal.  418;  ican  Provision  Co.  v.  Davis  Pro- 
Watkins  v.  Digener,  63  Cal.  500;  vision  Co.,  169  N.  Y.  506,  88  Am. 
Thurber  v.  Thurber,  113  Cal.  607,  St.  Rep.  608,  62  N.  E.  587,  affirm- 
45  Pac.  852.  ing  50  App.  Div.  273,  63  N.  Y.  Supp. 

3  Dunham  v.  Schindler,  17  Ore.  987;  affirmed  in  191  U.  S.  373,  48 
256,  20  Pac.  326.  L.   Ed.   225,  24   Sup.   Ct.  Rep.  92; 

1  Robinson  v.  Oceanic   Steam      Duquesne  Club  v.  Penn  Bank,  35 
Nav.  Co.,  112  N.  Y.  323,  16  N.  Y.      Hun  (N.  Y.)  390. 
Civ.  Proc.  Rep.  255,  2  L.  R.  A.  636,  As  to  locus  of  action  against  a 

19  N.  E.   625,   affirming  56  N.   Y.      foreign   corporation,   see   a  very 

483 


§385 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  J. 


"business  in  the  state^  and  having  agents  located  in  the 
state  for  this  purpose,  may  be  sued  and  served  with  proc- 
ess in  the  same  manner  as  domestic  corporations,  upon 
transitory  causes  of  action,  whether  such  cause  of  action 
originates  in  the  state  of  the  forum  or  elsewhere,  and 
whether  the  plaintiff  be  located  as  resident  of  the  state  of 
the  forum  or  elsewhere,  provided  only  that  the  enforce- 
ment of  the  cause  of  action  would  not  be  contrary  to  the 
laws  and  policy  of  the  state  of  the  forum  ;^  although  the 
mere  passing  through  the  state  of  an  agent  or  officer. 


exhaustive  note  in  70  L.  R.  A.  513- 
554. 

2  As  to  status  of  foreign  corpora- 
tion doing  business  witiiin  the 
state,  see  Hannis  Distilling  Co.  v. 
Baltimore,  City  of,  114  Md.  678,685, 
80  Atl.  319;  Showen  v.  Owens  Co., 
J.  L.,  158  Mich.  331,  133  Am.  St. 
Rep.  376,   122  N.  W.   640. 

Doing  business  in  state  in  which 
process  is  served  essential  to  con- 
fer jurisdiction  on  the  court,  is  the 
doctrine  in  some  jurisdictions.  — 
See  cases  cited  in  footnote  3,  this 
section,  and  Briscoe  v.  Brant,  38 
Utah  65,  110  Pac.  356. 

Domestic  corporation  maintain- 
ing office  and  advertising  connec- 
tion with  foreign  railroad 
corporation  and  solicited  business 
over  such  foreign  railroad,  such 
railroad  corporation  was  held  to 
be  doing  business  within  the  state 
for  purpose  of  an  action. — Central 
R.  Co.  V.  Eichberg,  107  Md.  371, 
14  L.  R.  A.  (N.  S.)  392,  68  Atl.  690. 

Soliciting  business  in  Pennsyl- 
vania for  railroad  with  eastern 
terminus  at  Chicago,  held  not  to 
constitute  doing  business  within 
the  state  so  as  to  give  the  court 
of  Pennsylvania  jurisdiction  over 
an  Iowa  corporation. — Green  v. 
Chicago,  B.  &  Q.  R.  Co.,  205  U.  S. 


533,  51  L.  Ed.  917,  27  Supp.  Ct. 
Rep.  595. 

Foreign  corporation  maintaining 
offices  within  the  state  at  which 
it  solicits  business  and  at  which 
its  dfrectors'  meetings  are  held, 
held  to  be  doing  business  within 
the  state  for  purposes  of  an  action. 
— Sleicher  v.  Pullman  Co.,  170  Fed. 
365. 

Foreign  insurance  company  can 
not  be  sued  in  one  county  and 
service  of  process  made  upon 
agent  in  another  county,  where  the 
party  insured  did  not  reside  in  the 
county  of  the  venue  either  at  the 
time  the  contract  of  insurance  was 
entered  into  or  at  the  time  of  his 
death. — Deatrick  v.  State  Life  Ins. 
Co.,  107  Va.  612,  59  S.  E.  489. 

3  Reeves  v.  Southern  R.  Co.,  121 
Ga.  561,  2  Ann.  Gas.  207,  70  L.  R.  A. 
513,  49  S.  E.  674,  overruling  on  this 
point  Bawknight  v.  Liverpool  & 
London  &  Globe  Ins.  Co.,  55  Ga. 
194,  which  latter  case  was  followed 
in  Central  R.  &  Banking  Co.  v. 
Carr,  76  Ala.  388,  52  Am.  Rep.  339; 
first  case  followed  without  discus- 
sion in  Hawkins  v.  Fidelity  &  C. 
Co.,  123  Ga.  722,  51  S.  E.  724; 
Southern  R.  Co.  v.  Grizzle,  124  Ga. 
740,  110  Am.  St.  Rep.  191,  53  S.  E. 
244;   Smith  v.  Empire  State-Idaho 


484 


■ 


ell.  XVI.] 


FOREIGN    CORPOKATIOX    Pr.AlNTIFP. 


§386 


though  a  head  officer,  woukl  not  give  the  courts  ol"  sacli 
state  jurisdiction  of  the  corporation.^  This  is  the  general 
and  the  better  doctrine,  although  it  does  not  go  without 
question:  Thus,  it  has  been  said  that  a  person  injured 
while  traveling  upon  a  railroad  in  one  state  incorporated 
in  that  state,  but  extending  to  and  doing  business  in  an- 
other state,  can  not  maintain  an  action  therefor  in  the 
latter  state.''  This  is  in  accordance  with  the  former  pre- 
vailing doctrine  that  actions  in  personam  could  not  be 
maintained  in  a  state  other  than  the  one  in  wdiich  it  was 
incorporated,  unless  the  contract  sued  on,  or  the  injury 
was  suffered  in  the  state  in  which  the  action  was  brouiiiit.'" 


§386. 


Illustrations  of  prevailing  doctrine 


A  few  of  the  various  classes  of  cases  illustrative  of  the 
prevailing  doctrine  as  above  laid  down  may  be  given  as 
follows:  An  action  against  a  foreign  corporation  doing 


Min.  &  Devel.  Co.,  127  Fed.  465. 
See:  South  Carolina  R.  Co.  v.  Nix, 
68  Ga.  572,  580;  Barrell  v.  Ben- 
jamin, 15  Mass.  354;  Cole  v.  Cun- 
ningham, 133  U.  S.  107,  113,  33 
L.  Ed.  541,  542,  10  Sup.  Ct.  Rep. 
269. 

4  Schmidlapp  v.  La  Confiance  Ins. 
Co.,  71  Ga.  246;  Associated  Press 
V.  United  Press,  104  Ga.  51,  29 
S.  E.  869;  Reynolds  &  H.  Eastern 
Mortg.  Co.  V.  Martin,  116  Ga.  495, 
42  S.  E.  796;  Reeves  v.  Southern 
R.  Co.,  121  Ga.  561,  2  Ann.  Cas. 
207,  70  L.  R.  A.  513,  49  S.  E.  674 
(obiter);  Abbeville  Electric  L.  & 
P.  Co.  V.  Western  Electrical  Sup- 
ply Co.,  61  S.  C.  361,  85  Am.  St. 
Rep.  890,  55  L.  R.  A.  146,  39  S.  E. 
559. 

Compare:  Harvey  v.  Thompson, 
128  Ga.  154,  119  Am.  St.  Rep.  373, 
9  L.  R.  A.  (N.  S.)  769,  57  S.  E.  104. 

^'  Central  R.  &  Banking  Co.  v. 
Carr,  76  Ala.  388,  52  Am.  Rep.  339. 


c  See:  Central  R.  &  Banking  Co. 
V.  Carr,  76  Ala.  388,  52  Am.  Rep. 
3  3  9;  Bawknight  v.  Liverpool  & 
London  &  Globe  Ins.  Co.,  55  Ga. 
194,  overruled  as  noted  in  foot- 
note 3,  this  section;  Smith  v. 
Mutual  Life  Ins.  Co.,  96  Mass.  (14 
Allen)  386;  Newe  v.  Great  W.  R. 
Co.  of  Canada,  19  Mich.  336; 
Parke  v.  Commonwealth  Ins.  Co., 
44  Pa.  St.  422;  Sawyer  v.  North 
American  Life  Ins.  Co.,  46  Vt.  697; 
St.  Clair  v.  Cox,  106  U.  S.  350,  27 
L.  Ed.  222,  1  Sup.  Ct.  Rep.  .^54. 

For  history  of  development  of 
doctrine  as  it  now  prevails,  see 
Reeves  v.  Southern  R.  Co.,  121  Ga. 
561,  2  Ann.  Cas.  207,  70  L.  R.  A. 
513,  49  S.  E.  674,  and  notes,  2  Ann. 
Cas.  210,  70  L.  R.  A.  513. 

Statutory  provision  thus  limiting 
right  of  action  does  not  offend 
against  the  provision  of  federal 
constitution. — Central  R.  &  Bank- 
ing Co.  V.  Georgia  Const.  &  Invest. 
Co..  32  S.  C.  319,  11  S.  E.  192. 


485 


§387 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


business  in  the  state  on  a  contract  wholly  performable 
out  of  the  state  ;^  action  by  an  employee  to  recover  dam- 
ages from  a  foreign  railroad  company  for  personal  in- 
juries arising  under  the  federal  employer's  liability  act,- 
or  by  a  passenger  to  recover  damages  for  a  collision 
occurring  in  another  state  ;^  an  action  against  a  foreign 
corporation  by  a  nonresident  of  the  state  for  malicious 
prosecution  and  false  imprisonment  at  the  forum  ;^  an 
action  for  tort^  against  a  foreign  railroad  company  for 
failure  to  deliver  cattle  in  another  state,*^  or  for  wrongful 
death  in  another  state.'^ 

Locus  of  venue  against  a  nonresident  corporation  in  an 
action  on  a  cause  of  action  arising  outside  of  the  state  is 
any  county  in  which  service  of  process  may  be  had.*  But 
in  those  cases  in  which  resident  defendants  are  joined 
with  a  foreign  corporation,  the  right  thus  to  sue  in  any 
county  of  the  state  is  lost;  the  locus  of  the  venue  is  the 
county  in  which  the  resident  defendants  live.® 

<§>  387.  Objections  and  exceptions — In  general.  We 
have  already  discussed  the  question  of  objections  and  ex- 
ceptions, and  the  method  of  taking  and  entering  the  same, 
in  connection  with  the  place  of  trial  of  a  cause  as  deter- 
mined by  the  subject-matter  of  the  action  or  the  nature 
of  the  proceedings  ;^  and  it  remains  but  to  add  here  that 

1  Western  Union  Tel.  Co.  v. 
Russell,  12  Tex.  Civ.  App.  85,  33 
S.  W.  708. 


2  Bradbury  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  149  Iowa  59,  40  L.  R.  A. 
(N.  S.)   690,  128  N.  W.  1. 

3  Denver  &  R.  G.  R.  Co.  v.  Roller, 
41  C.  C.  A.  22,  28,  100  Fed.  738. 
744,  49   L.  R.  A.  77,  82. 

4  Williams  v.  Pope  Mfg.  Co.,  52 
La.  Ann.  1432,  78  Am.  St.  Rep, 
390,  50  L.  R.  A.  822,  27  So.  851. 

5  Reeves  v.  Southern  R.  Co.,  121 
Ga.  561,  565,  2  Ann.  Cas.  207,  70 
L.  R.  A.  513,  49  S.  E.  674. 


6  Bracewell  v.  Southern  R.  Co., 
134  Ga.  538,  68  S.  E.  98;  Lytle  v. 
Southern  R.  Co.,  3  Ga.  App.  221, 
59  S.  E.  595. 

7  Wabash  R.  Co.  v.  Hassett,  170 
Ind.  382,  S3  N.  E.  705. 

See  authorities,  ante,  §  383,  foot- 
note 4. 

8  Wright  V.  Southern  R.  Co.,  7 
Ga.  App.  545,  67  S.  B.  272;  Ivanusch 
V.  Great  Northern  R.  Co.,  26  S.  D. 
158,  128  N.  W.  333. 

9  Ludington  Exploration  Co.  v. 
La  Fortuna  Gold  &  S.  Min.  Co., 
4  Cal.  App.  369,  88  Pac.  290. 

1  See,  ante,  §§  355,  356. 


IQQ 


eh,  XVI.]  OBJECTIONS — ESTOPPEL   AND   WAIVER.  §  388 

in  the  case  of  transitory  actions  of  the  residentiary  class, 
where  the  defendant  has  a  personal  privilege  to  have  a 
cause  brought  and  tried,  or  simply  to  have  the  trial,  in 
the  county  of  his  residence,  where  an  action  is  brought 
in  the  wrong  county  timely  objection  and  exception 
thereto  must  be  made  in  the  manner  required  by  the 
statute  of  the  particular  jurisdiction,  or  the  objection  will 
be  deemed  to  have  been  waived.-  The  method  of  object- 
ing and  taking  exceptions  to  the  violation  of  the  defend- 
ant's privilege  differs  in  different  jurisdictions.  Thus, 
in  California  it  is  by  motion  for  a  change  of  the  place  of 
trial  f  in  Colorado  it  must  be  by  plain  abatement,^  pro- 
ceedings by  motion  being  insufficient;^  by  motion  for 
change  of  venue  in  lowa,^  motion  to  dismiss  being  im- 
proper ;^  by  motion  for  change  of  place  of  trial  in  Minne- 
sota,* Montana*^  and  Utah;^*^  while  in  Nebraska  the  objec- 
tion is  to  be  taken  in  the  answer.^^ 

§  388.    Estoppel  and   waiver.      The   question   of 

waiver  of  objection  and  estoppel  to  raise  question,  also 
has  been  already  discussed,^  and  it  remains  but  to  add 
here  that  where  a  defendant  has  a  personal  privilege  of 
having  an  action  commenced  and  tried,  or  the  trial  had, 
in  the  county  of  his  residence,  or  any  particular  county, 
he  may  waive  the  privilege  either  expressly  or  by  impli- 

2  See,  post,  §  388.  7  Marquardt    v.    Thompson,    7  8 

3  See:    Kerr's  Cyc.  Cal.  Code  Civ.      Iowa  158.  42  N.  V^.  634. 

Proc,  2d  ed.,  §395;    Consolidated  '^Merrill  v.  Shaw.  5  Minn.  148; 

Collins  V.  Bowen.  45  Minn.  186.  47 


Supp.  1906-1913,  p.  1425;    Bohn  v. 
Bohn,  164  Cal.  532,  129  Pac.  981. 


N.  W.  719. 

9  State  ex  rel.  Schatz  v.  District 
4  Cody  V.  Raynaud.  1  Colo.  272;       ^^^^^^  ^^  ^^^^^.    ^^3^  ^^^  p^^    554 

Western  Union   Tel.   Co.  v.   Clay-  ^^  Snyder  v.  Pike,  30  Utah  102, 

more.  2  Colo.  32,  34.  g3    p^^,     ggg    (under    Rev.    Stats. 

•■^Id.  1898,  §  2933). 

<•' McDonald  V.  Second  Nat.  Bank,  11  Baker  v.  Union  Stock  Yards 

106    Iowa    517,    76    N.    W.    1011;  Nat.  Bank,  63  Neb.  801.  93  Am.  St. 

Marquardt  v.  Thompson,  78  Iowa  Rep.  484,  89  N.  W.  269. 

158,  42  N.  W.  634.  1  See,  ante,  §  357. 

487 


§388 


CODE   PLEADING   AND   PRACTICE. 


[Pt.I, 


cation ;-  but  where  the  constitution^  or  statute  by  manda- 
tory provision  designates  the  county  in  which  an  action 
shall  be  brought,  a  failure  to  bring  it  in  such  county  can 
not  be  waived  by  the  defendant.*  An  objection  that  an 
action  is  commenced  in  the  wrong  county  in  violation  of 
the  privilege  of  the  defendant  is  deemed  to  have  been 
waived  where  the  defendant,  w^ithout  objecting  duly  on 
that  ground  appears  in  the  action;^  consents  to  the  pro- 
ceedings,— e.  g.  the  probate  of  a  will;*^  files  general  de- 
murrer without  moving  transfer  to  proper  county,'^  or 
suffers  a  default.^  But  a  simple  failure  of  the  defendant 
to  appear  at  the  time  of  ruling  on  an  application  for  the 
change  of  the  place  of  trial  to  the  proper  county,  the 
county  of  his  residence,  does  not  constitute  a  waiver  of 
the  objection  that  the  action  was  not  commenced  in  the 
proper  county.^ 


2  See:  Hearne  v.  De  Young,  111 
Cal.  373,  43  Pac.  1108;  Bohn  v. 
Bohn,  164  Cal.  532,  129  Pac.  981; 
Miller  v.  Weston,  25  Colo.  App. 
231,  138  Pac.  424;  McDonald  v. 
Second  Nat.  Bank,  106  Iowa  517, 
76  N.  W.  1011;  Collins  v.  Bowen, 
45  Minn.  186,  47  N.  W.  719;  Snyder 
V.  Pike,  30  Utah.  102,  83  Pac.  692; 
Stone  V.  Union  Pac.  R.  Co.,  32 
Utah  187,  207,  89  Pac.  715,  723; 
Farnsworth  v.  Union  Pac.  Coal  Co., 
32  Utah  112,  89  Pac.  74;  State  ex 
rel.  Schwabacher  Bros.  &  Co.  v. 
Superior  Court,  61  Wash.  681,  Ann. 
Cas.   1914C,  814,  112   Pac.  927. 

3  As  Utah  Constitution,  art.  VIII, 
§  5,  requiring  every  cause  of  action 
to  be  tried  in  the  courts  of  the 


county  1  n  which  the  cause  of 
action  arose. 

4  Knold  V.  Rio  Grande  W.  R.  Co.. 
16  Utah  151,  51  Pac.  256. 

5  State  ex  rel.  Schwabacher  Bros. 
&  Co.  V.  Superior  Court,  61  Wash. 
681,  Ann.  Cas.  1912C,  814,  112  Pac. 
927. 

6  Miller  v.  Weston,  25  Colo.  App. 
231,  138  Pac.  424. 

7  Farnsworth  v.  Union  Pac.  Coal 
Co.,  32  Utah  112,  89  Pac.  74  (under 
laws  1903,  ch.  92,  §1,  p.  76). 

8  McDonald  v.  Second  Nat.  Bank, 
106  Iowa  517,  76  N.  W.  1011. 

9  State  ex  rel.  Stockman  v.  Su- 
perior Court,  15  Wash.  366,  46  Pac. 
395. 


488 


I 


CHAPTER  XVII. 

CHANGE  OF  PLACE  OF  TKIAL. 

§  389.    In  general. 

§  390.    Definitions  and  distinctions. 

§  391.    Power  of  court  to  change  place  of  trial — In  general. 

§  392.    Application  for  change  of  place  of  trial — In  general 

§  393.    As  to  time  of  application. 

§  394.    As  to  manner  of  application. 

§395.    As  to  effect  of  application.  ' 

§  396.    As  to  causes  of  action  to  which  applicable  ' 

§  397. Specific  instances.  j 

§  398.    Who  may  apply  for  change — Plaintiffs. 

§  399.    Defendants — In  general. 

§  400. Co-defendants  must  join. 

§  401,    Affidavit  of  merits — In  general. 

§  402.    Form  and  sufficiency  of  affidavit. 

§  403.    Amendment  of  affidavit  of  merits. 

§  404.    By  one  co-defendant  for  all. 

§  405.    Causes  or  grounds  for  change  of  place  of  trial. 

§  406.    Counter-motion  to  retain  cause. 

§  407.    Demand  for  change  of  place  of  trial. 

§  408.    Form  and  statement  in  demand — In  California. 

§  409. In  New  York. 

§410.    Affidavits — 1.  Where  ground  nonresidence — Defendant's 
affidavits. 

§  411. Plaintiff 's  affidavits. 

§  412. Association  or  corporation — In  California. 

§  413. Plaintiff 's  affidavits. 

§  414_    2.  Bias,  partiality  and  prejudice — Moving  affidavits. 

§  415. Amount  of  bias,  partiality  or  prejudice  neces- 
sary. 

§  416. Counter-affidavits. 

§  417.    3.  For  convenience  of  witnesses — Moving  affidavits. 

§  418. Counter-affidavits. 

§  419. Application  can  be  made  when, 

489 


§  389  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

§  420. Discretion  of  court. 

§  421.    4.  Disqualification  of  judge — Supporting  affidavits. 

§422. In  California. 

§  423. (1)    Party  to  or  interested  in  action. 

§  424. What  interest  disqualifies. 

§425. (2)  Relationship  by  affinity  or  consan- 
guinity. 

§  426. Party  includes  whom. 

§  427. Rule  for  determination  of  relation- 
ship. 

§  428. (3)    Former  counsel  in  case,  etc. 

§429. (4)    Bias    and    prejudice    of    presiding 

judge. 

§  430. (5)    In  cases  against  reclamation  districts, 

etc. 

§  431.    Hearing  and  determination  of  application  for  change. 

§  432.    Order — Denying  application  for  change. 

§  433. Appeal  and  mandamus. 

§  434.    Granting  application  for  change. 

§  435.    Transfer  of  cause — In  general. 

§  436.    Procedure  and  practice. 

§  389.  In  general.  A  right  to  a  change  in  the  place  of 
the  trial  of  a  cause,  is  a  right  of  the  defendant  which  was 
firmly  established  at  common  law  at  the  time  the  thirteen 
colonies  separated  from  the  mother  country/  and  be- 
came the  ''law  of  the  land"  in  this  country  in  all  those 
states  adopting  the  common-law  system  of  practice  and 
procedure,-  but  not  in  those  states  which  did  not  adopt 
that  system,^  or  in  states  having  the  reformed  system  of 

1  See  Cochecho  R.  Co.  v.  Far-  In  criminal  cases  Michigan 
rington,  26  N.  H.  428.  courts   held   to   have   common-law 

2  Id.;  Cooke  v.  Cooke,  41  Md.  power  to  change  place  of  trial,  In 
362;  Lynch  v.  Horry,  1  Bay.  L.  p^^pie  v.  Peterson,  93  Mich.  27, 
(S.  C.)  229.  52  N.  W.  1039. 

3  Lincoln  County  v.  Prince,  2 

Mass.  544;    Cleveland  v.  Welsh,  4  ^^^^  doctrine  held  in  New 

Mass.  591;  Hawkes  v.  Kenebeck  Hampshire,  in  State  v.  Albee.  61 
County,  7  Mass.  461;  Shannon  v.  N.  H.  423,  60  Am.  Rep.  325,  over- 
Smith,  31  Mich.  451;  Livingston  ruling  State  v.  Sawyer,  56  N.  H. 
V.  Xoe,  69  Tenn.  (1  Lea)   55.  175. 

490 


Cll.  XVII.]  DEFINITIONS    AND    DISTINCTIONS.  §  390 

judicature.^  The  right  to  a  cliange  of  place  of  trial  is 
now  controlled  by  constitutional  and  statutory  provisions 
in  the  majority,  if  not  all,  the  jurisdictions ;  and  the  statu- 
tory provisions  must  be  closely  followed  in  seeking  to 
secure  an  enforcement  of  the  right.  Thus,  in  California, 
for  example,  the  application  for  a  change  of  the  place  of 
trial  must  be  made  at  the  time  an  answer  or  demurrer  is 
filed  f  if  the  demand  is  made  before  that  time  it  ^vill  be  of 
no  avail  f  and  the  same  is  true  where  the  demand  is  made 
after  his  demurrer  has  been  overruled,'^  or  after  trial. ^ 

§  390.  Definitions  and  distinctions.  The  use  of  the 
term  "change  of  venue"  is  thought  to  be  ill-advised,  be- 
cause technically  there  can  be  no  change  in  the  venue, 
although  there  may  be  a  change  in  the  place  of  trial.  ^ 
"Removal  of  cause"  is  also  an  unfortunate  phrase  used 
in  a  statute,  or  elsewhere,  to  convey  the  idea  of  a  change 
of  the  place  of  the  trial  of  a  cause;  removal  of  cause, 
properly  speaking,  is  where  jurisdiction  as  well  as  the 
place  of  the  trial  is  changed,  substituting  a  federal  court 
for  the  state  court.-  Where  used  in  a  statute  providing 
for  and  regulating  the  change  in  the  place  of  the  trial  of  a 
cause,  the  phrases  "change  of  venue"  and  "removal  of 

4  See:      Zelle  v.  McHeniT,  51  8  Smith  v.  King  of  Arizona  Min. 

Iowa  572,  2   N.  W.   264;    State  v.  &   Mill.   Co.,   9   Ariz.    228,    231,   80 

McGehan,  27   Ohio   St.  280;    Com-  pac.  357;  Maxon  v.  Chicago,  M.  & 

mercial  Nat.  Bank  v.  Davidson,  18  g^   p_  r  ^o.,  67  Iowa  226.  25  N  W. 

Ore.  57,  22  Pac.  517.  ... 

... ,  144. 

sThomas  v.  Placerville  Gold 

Quartz  Min.  Co.,  65  Cal.  600,  4  Pac.  ^^^'   ^^o^ever,   post.   §  397.   foot- 

641;  Nicholl  v.  Nicholl,  66  Cal.  36,  °°^®  ^^• 

4    Pac.    882.      See    Union   Lumber  ^  Venue    material    averment    in 

Co.  V.  Metropolitan  Constr.  Co.,  13  indictment  can  not  be  changed,  but 

Cal.  App.  584,  110  Pac.  329.  the  place  of  the  trial  of  the  action 

'■-  Nicholl  V.  Nicholl,  66  Cal.  36,  or  prosecution  may  be  when   the 

4  Pac.  882.  appropriate   grounds   therefor   are 

~  See  Union  Lumber  Co.  v.  Me-  made  to  appear.— See  State  v.  Ad- 

tropolis  Constr.  Co.,  13  Cal.  App.  dison,  2  S.  C.  356. 

•')84,   110  Pac.   329;    Nutley  v.  Me-  2  As   to   removal    of   cause,   see, 

tropolis  Constr.  Co.,  13  Cal.  App.  post,  §§  437  et  seq. 
588,  110  Pac.  331. 

491 


§391 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


cause"  are  used  interchangeably  as  synonymous.^ 
Strictly  speaking,  ''change  of  venue"  or  ''removal  of 
cause,"  as  used  in  the  statutes  and  popular  parlance,  sim- 
ply means  a  change  in  the  place  of  the  trial  of  a  cause 
from  one  county  to  another  ;^  and  sometimes,  but  inaccu- 
rately, a  transfer  from  one  department  to  another  of  the 
court  in  the  same  county,^  but  such  a  transfer,  like  calling 
in  another  judge,  in  no  true  sense  changes  the  place  of 
trial.^ 

§  391.  Power  of  court  to  chaxge  place  of  trial — In" 
GENERAL.  Under  the  constitutional  and  statutory  provi- 
sions in  the  various  jurisdictions  authorizing  a  change  in 
the  place  of  the  trial  of  a  cause  when  specified  things  are 
properly  made  to  appear  as  a  cause  or  ground  therefor, 
the  power  of  the  court  is  limited  to  the  exercise  of  a  judi- 
cial discretion,  on  good  cause  shown. ^  Such  change  may 
be  applied  for  on  the  ground  (1)  that  the  action  has  not 
been  brought  in  the  proper  county,  considering  the  loca- 


3  State  ex  rel.  Vickery  v.  Wof- 
ford,  119  Mo.  375,  24  S.  W.  764; 
Felts  V.  Delaware,  L.  E.  &  W.  R. 
Co.,  195  Pa.  St.  21,  45  Atl.  493. 

4  Hutts  V.  Hutts,  62  Ind.  240. 
sWeare    v.    Williams,    69    Iowa 

252,  28  N.  W.  589;  State  ex  rel. 
Vickery  v.  Wofford,  119  Mo.  375, 
24  S.  W.  764;  State  v.  Addison,  2 
S.  C.  356. 

6  See  Perrin  v.  State,  81  Wis. 
135,  50  N.  W.  516. 

1  Kennon  v.  Gilmer,  5  Mont.  257, 
51  Am.  Rep.  45,  5  Pac.  847;  af- 
firmed upon  this  point  but  re- 
versed upon  another  point  in  Ken- 
non V.  Gilmer,  131  U.  S.  22,  33 
L.  Ed.  110,  9  Sup.  Ct.  Rep.  696; 
Territory  v.  Manton,  8  Mont.  95, 
19  Pac.  387;  Davis,  In  re,  11 
Mont.  1,  27  Pac.  342;  State  v.  Rus- 
sell, 13  Mont.  164,  32  Pac.  854. 

Adverse  party  of  great  influence 


over  the  inhabitants  of  community 
in  which  the  action  is  pending,  in- 
sufficient to  warrant  change  of 
place  of  trial  without  other  evi- 
dence of  undue  influence.— Greene 
V.  Wilson,  27  Fla.  492,  8  So.  723. 

Facts  must  be  set  forth  upon 
which  application  for  change  of 
venue  is  based,  not  the  mere  opin- 
ions of  affiants  and  witnesses  pro- 
duced in  support  thereof. — State  v. 
Spotted  Hawk,  22  Mont.  33,  55 
Pac.  1026. 

Review  of  order  granting  or  re- 
fusing application  for  change  of 
venue  not  reviewable,  in  absence 
of  abuse  of  discretion. — Kennon  v. 
Gilmer,  5  Mont.  257,  51  Am.  Rep. 
45,  5  Pac.  847.  See  Boesch  v. 
Graff,  133  U.  S.  699,  33  L.  Ed.  788, 
10  Sup.  Ct.  Rep.  379;  Bondholders, 
etc.,  iron  R.  Co.  v.  Toledo,  D.  & 
R.  R.  Co.,  62  Fed.  166,  169. 


402 


Ch.  XVII.]  CHANGING   PLACE   OP    TRIAL — POWER.  §  o!)! 

tion  of  the  subject  of  the  action,  or  it  may  be  applied  for 
(2)  on  the  ground  that  the  ends  of  justice,  or  the  con- 
venience of  parties  and  their  witnesses,  will  be  better  sub- 
served by  the  change;  or  (3)  on  the  ground  of  prejudice 
in  the  community  preventing  a  fair  and  impartial  trial,  or 
(4)  because  of  bias  or  disqualification  of  the  judge  x)re- 
siding,  or  to  preside,  at  the  trial  of  the  cause  in  the  count}^ 
where  the  action  is  instituted  or  prosecution  had.  In  any 
case  where  application  for  a  change  in  the  place  of  trial 
is  made,  before  it  is  incumbent  upon  the  court  to  make 
the  change,  good  cause  must  be  shown  by  the  party  ap- 
plying therefor,  and  this  remedy  is  a  privilege  which  may 
be  waived,  as  by  failing  to  appear,-  the  statute  being 
mandatory  upon  the  court  when  the  party  apph-iug  brings 
himself  within  its  provisions  only.^  A  motion  for  change 
of  venue  on  the  ground  of  the  convenience  of  witnesses, 
and  because  a  fair  and  impartial  trial  can  not  be  had  in 
the  county  in  which  the  action  is  brought,  is  held  to  be 
addressed  to  the  sound  discretion  of  the  court,  and  that 
its  action  thereon  will  not  be  disturbed  on  appeal,  unless 
it  appears  that  this  discretion  has  been  abused,  or  injus- 
tice has  been  done.^  But  where  an  action  involving  real 
estate  is  brought  in  the  wrong  county,  there  is  no  discre- 
tion in  the  court,  and  the  change  of  venue  is  a  matter  of 
right,^  which  may,  however,  be  waived.''  So  where  the 
action  is  one  which  the  defendant  is  entitled  to  have  tried 
in  the  county  of  his  residence,  if  proper  application  for 
the  change  is  made,  it  is  the  duty  of  the  court  to  grant  it, 

2  Fletcher  v.  Stowell,  17  Colo.  94,  State   ex   rel.   Port   Blankley    Mill 

28  Pac.  326.  Co.  v.  Superior  Court,  9  Wash.  673, 

::  Roberts  v.  People,  9  Colo.  458,  38  Pac.  155. 

13  Pac.  630.  •"'  Smith  v.  People,  2  Colo.  App. 

4  Avila  V.  Meherin,  68  Cal.  478.  99,     29     Pac.     924,     distinguishinj? 

9    Pac.    428;     Stockton    Combined  Fletcher  v.  Stowell,  17  Colo.  94,  28 

Harvester  &  A.  Works  v.  Houser,  Pac.  326. 

103  Cal.  377,  380,  37  Pac.  179;  Bird  o  See   Smith  v.   People,   2   Colo. 

V.  Utica  Gold  Min.  Co.,  2  Cal.  App.  App.    99,    29    Pac.    924;     Elam    v. 

673,  86  Pac.  509;   De  Wein  v.  Os-  Griffin.  19  Nev.  443,  14  Pac.  582. 

born,   12    Colo.    407,   21   Pac.   189:  See,  also,  ante,  §  288. 

493 


§392 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I, 


and  the  court  has  no  discretion  to  refuse  to  hear  the  ap- 
plication, or  to  impose  terms  as  a  condition  precedent  to 
the  hearing/  The  right  to  a  change  of  venue  is  to  be 
determined  by  the  condition  of  things  existing  at  the  time 
the  parties  claiming  it  first  appeared  in  the  action  f  party 
can  not  be  deprived  of  the  right  by  an  amendment  there- 
after made  to  the  complaint  or  the  adding  of  a  new  cause 
of  action,''  or  new  parties  defendant. ^*^ 

§  392.  Application  for  change  of  place  of  trial — In 
GENERAL.  After  the  service  of  process  and  a  copy  of  the 
complaint  upon  the  defendant,  the  attorney  for  defendant 
should  make  inquiry  by  examining  the  complaint  as  to 
whether  the  action  is  brought  in  the  proper  county,  and 
if  it  is  not,  and  a  change  of  venue  is  desired,  the  defendant 
must  at  the  proper  time,^  and  in  the  proper  manner,- 
move  the  court  for  a  change  of  the  place  of  trial.  This 
may  be  done  after  answer  or  demurrer^  upon  affidavit  of 
merits  and  notice  to  the  plaintiff.  In  California,  the 
notice  to  be  given,  as  to  time,  is  five  days  before  the  time 
appointed  for  the  hearing,  if  the  court  is  held  in  the 


7  Watts  V.  White,  13  Cal.  321, 
324;  Watkins  v.  Degener,  63  Cal. 
500;  Hennessy  v.  Nicol,  105  Cal. 
138,  38  Pac.  649;  Thuber  v.  Thu- 
ber,  113  Cal.  607,  610,  45  Pac.  852; 
State  V.  Campbell,  3  Cal.  App.  605, 
86  Pac.  841;  Fletcher  v.  Stowell, 
17  Colo.  94,  97,  28  Pac.  326;  Smith 
V.  People,  2  Colo.  App.  99,  105,  29 
Pac.  649;  Yore  v.  Murphy,  10 
Mont.  304,  311,  25  Pac.  1039;  Mc- 
Donnell V.  Collins,  19  Mont.  372, 
373,  48  Pac.  549;  Clarke  v.  Lyon 
County,  8  Nev.  186;  Elliott  v. 
Whitmore,  10  Utah  246,  251,  37 
Pac.  461. 

8  Ah  Pong  V.  Sternes,  79  Cal.  30, 
33,  21  Pac.  381;  Hennessy  v.  Nicol, 
105  Cal.  138,  38  Pac.  649;  Brady  v. 
Times-Mirror  Co.,  106  Cal.  56,  62, 


39  Pac.  209;  Wallace  v.  Owsley,  11 
Mont.  219,  221,  27  Pac.  790. 

9  Ah  Fong  V.  Sternes,  79  Cal.  30, 
33,  21  Pac.  381;  Warren  v.  Warren, 
100  Cal.  11,  16,  34  Pac.  523;  Bond 
V.  Hurd,  31  Mont.  318,  3  Ann.  Gas. 
566,  78  Pac.  581. 

10  Brady  v.  Times-Mirror  Co., 
106  Cal.  56,  58,  39  Pac.  209. 

1  Demand  before  or  after  the 
proper  time,  we  have  already  seen, 
is  unavailing. — See,  ante,  §  389, 
footnotes  5-7. 

2  As  to  manner  of  making  de- 
mand for  change  of  place  of  trial, 
see,  post,  §  394. 

3  As  to  time  of  demand  for 
change  of  place  of  trial,  see,  post, 
§  393. 


494 


eh.  XVIL]  APPLICATION   FOR   CHANGE.  §§393,394 

county  in  wMcli  at  least  one  of  the  attorneys  of  each  party 
has  his  office ;  otherwise,  ten  days '  notice  must  be  given. 
When  the  notice  is  served  by  mail,  the  number  of  days 
before  the  hearing  must  be  increased  one  day  for  every 
twenty-five  miles  of  distance  between  the  place  of  deposit 
and  the  place  of  service;  such  increase,  however,  not  to 
exceed  in  all  thirty  days.^ 

§  393.    As  TO  TIME  OF  APPLICATION.    lu  California, 

where  the  place  in  which  the  action  is  commenced  is  not 
the  proper  place  of  trial  thereof,  the  defendant  must  file 
a  written  demand  that  the  place  of  trial  of  the  action  be 
transferred  to  the  proper  court ;  and  this  w^ritten  demand 
must  be  filed  at  the  time  of  filing  his  answer  or  demurrer 
by  the  defendant.^  Filing  such  demurrer  before-  or  after^ 
that  time  mil  be  unavailing. 

§  394.    As  TO  MANNER  OF  APPLICATION.    The  manner 

of  application  for  a  change  of  the  place  of  trial,  in  Cali- 
fornia, is  by  filing  an  affidavit  of  the  merits,^  which  in  its 
requisites  and  sufficiency  is  controlled  to  a  certain  extent 
by  the  cause  or  ground-  for  a  change  of  the  place  of  trial, 
and  a  written  demand  that  a  change  in  the  place  of  the 
trial  be  made.^  The  filing  of  the  affida\4t  of  merits  and 
the  written  demand  for  a  change  in  the  place  of  trial  do 
not  operate  ipso  facto,  to  change  the  place  of  trial.  The 
change  is  effected  only  by  an  order  of  the  court,"*  after  its 
judicial  action  has  been  invoked,  by  bringing  the  demand 

4  See  Kerr's  Cyc.  Cal.  Code  Civ.  2  As  cause  or  grounds  for  change 

Proc,  2d  ed.,  §  1005;  Consolidated  of  place  of  trial,  see,  post,  §  396. 
Supp  1906-1913,  p.  1710.  •"•  See  Kerr's  Cyc.  Cal.  Code  Civ. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  P^o^-  2d  ed     §  396;    Consolidated 
Proc,  2d  ed.,§  396;    Consolidated  Supp.  1906-191,  p.  142  . 

a  iQnciQi9    r.    1497  As  to  form  of  demand,  see  Jury's 

Supp.  1906-1913,  p.  1427.  -     r^.      j- 

Adjudicated     Forms     of     Pleading 

2  See,  supra,  §389,  footnote  6.  ^^^  Practice,  vol.  2,  p.  1814,  Form 

3  Id.,  footnote  7.  No.  1097. 

1  As  to  affidavit  of  merits,  see.  4  As  to  order  for  change  of  the 

post,  §  401.  place  of  trial,  see,  post,  §  434. 

495 


§395 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  I, 


on  for  hearing,  on  notice,^  in  which  hearing  the  defend- 
ant's right  to  a  change  of  the  place  of  trial  may  be  con- 
tested.^ Under  the  California  Code  of  Civil  Procedure 
the  hearing  is  brought  on  by  a  motion  duly  made^  in  the 
court  in  which  the  action  is  pending^  and  due  notice  of 
the  hearing  given  ;^  and  this  motion  and  notice  are  neces- 
sary steps  in  the  proceedings  for  a  transfer  of  the  place 
of  trial  of  a  cause  of  action.^"  Even  in  those  cases  in 
which  a  defendant  has  an  absolute  right  to  a  transfer,  he 
may  waive  that  right,^^  and  the  trial  may  be  had  in  the 
county  in  which  the  action  is  brought  ;^^  and  where  the 
defendant  fails  to  follow  the  procedure  provided  in  the 
Code  of  Civil  Procedure  to  obtain  an  order  for  the  trans- 
fer of  the  trial  of  a  cause  in  the  proper  county,  he  is 
deemed  to  have  waived  his  right.^^ 

§  395,  As  TO  EFFECT  OF  APPLICATION.  An  application 

for  and  a  demand  of  a  change  of  the  place  of  trial  of  a 
cause,  made  in  accordance  with  the  provisions  of  the  stat- 
utes of  the  particular  jurisdiction,  and  at  the  time  pro- 
vided, has  the  effect  to  deprive  the  court  in  which  the 
action  is  commenced,  and  to  which  the  application  is 
made,  of  all  jurisdiction  to  proceed  with  the  cause,  other 
than  to  hear  and  determine  the  application  for  and  de- 
mand of  a  change  in  the  place  of  trial  of  the  cause. ^    If 


5  Bohn  V.  Bohn,  164  Cal.  532,  129 
Pac.  981, 

old. 

7  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  1003. 

sid.,  §  1004. 

9  See,  supra,  §  392,  text  and  foot- 
note 4. 

10  Bohn  V.  Bohn,  164  Cal.  532, 
129  Pac.  981. 

11  See,  ante,  §  388. 

12  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §396;  Consolidated 
Supp.  1906-1913,  p.  1427. 

13  Bohn  V.  Bohn,  164  Cal.  532, 
129  Pac.  981. 


1  Watts  V.  White,  13  Cal.  321; 
Cook  V.  Pendergast,  61  Cal.  72; 
Heald  v.  Hendy,  65  Cal.  321,  4 
Pac.  27;  Brady  v.  Times-Mirror 
Co.,  106  Cal.  56,  39  Pac.  209;  Chase 
v.  Superior  Court,  154  Cal.  789,  99 
Pac.  355;  Smith  v.  People,  2  Colo. 
App.  99,  29  Pac.  924,  distinguishing 
Fletcher  v.  Stowell,  17  Colo.  94,  28 
Pac.  326;  Veeder  v.  Baker,  83  N.  Y. 
156;  Bonnell  v.  Easterly,  30  Wis. 
549;  Woodward  v.  Hanchett,  52 
Wis.  482,  9  N.  W.  468;  Meiners  v. 
Loeb,  64  Wis.  343.  25  N.  W.  216. 

No  further  proceedings  can  be 
had  in  the  action  until  the  motion 


496 


Ch.  XVII.]  CAUSES  TO   WHICH   APPLICABLE.  §  396 

the  application  is  granted,  that  terminates  the  jurisdic- 
tion and  power  of  the  court  granting  the  order,-  the  act 
of  transmitting  the  papers  in  the  cause  to  the  court  or 
county  to  which  transferred  being  merely  a  ministerial 
act  to  be  performed  by  the  clerk  of  the  court  granting 
the  order.^  At  the  time  of  making  and  entering  the  order 
of  change  in  the  place  of  trial,  the  court  to  which  the 
cause  is  transferred  acquires  jurisdiction.'* 

<§>  396.    As  TO  CAUSES  OF  ACTION  TO  WHICH  APPLICABLE. 

The  classes  of  causes  of  action  to  which  an  application 
for  a  change  in  the  place  of  trial  applies  include :  (1)  Civil 
actions,  both  at  law  and  in  equity,  and  (2)  criminal  ac- 
tions. In  civil  actions  it  includes  (1)  real  and  local  actions, 
and  (2)  personal  and  transitory  actions,  and  the  personal 
privilege  is  more  usually  exercised  in  transitory  actions 
of  the  residentiary  class  than  any  other  class  of  actions. 
As  to  real  actions,  we  have  already  seen^  that  in  such 
actions, — e.  g.  action  to  enforce  a  lien  on  land,  where  the 
county  has  been  divided  after  the  action  is  commenced, 
and  the  land  by  such  division  of  the  county  thrown  into  a 
county  other  than  the  original  county  in  which  the  action 
commenced, — the  court  of  the  latter  county  does  not  lose 
its  jurisdiction,  in  California.  The  rule  seems  to  be  other- 
wise in  some  jurisdictions, ^  but  where  a  different  rule 
prevails  the  change  of  the  place  of  trial  to  the  newly 
organized  county  does  not  affect  the  cause  of  action.^ 

Is  disposed  of. — Smith  v.  People,  3  See  Kerr's  Cyc.  Cal.  Code  Civ. 

2  Colo.  App.  99,  105,  29  Pac.  924.  Proc,  2d  ed.,   §399;    Consolidated 

— Court   can    not   entertain    mo-  Supp.  1906-1913,  p.  1432. 

tion  to  amend  complaint,  effect  of  4  chase    v.    Superior   Court,    154 

which  would  be  to  defeat  motion  cal.  789,  99  Pac.  355. 

for  change.-Brady  v.  Times-Mir-  g^                g  43g   footnote  1. 
ror  Co.,  106  Cal.  56,  61,  39  Pac.  209. 

„  „      .            .       X     •           J      *  1  See,  ante,  §  329. 

2  Makmg  and  entering  order  ter- 
minates   jurisdiction.  —  Chase    v.  -  Bookwalter  v.  Conrad,  15  Mont. 
Superior   Court,    154    Cal.    789,    99  464,  39  Pac.  373. 
Pac.  355.  3  Id. 

I  Code  PI.  and  Pr.— 32  497 


§  397  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

§  397. Specific  instances.  It  is  impracti- 
cable to  lay  down  rules  governing  all  the  classes  of  cases 
in  which  a  right  to  a  change  in  the  place  of  trial  exists, 
because  the  right  in  any  given  case  depends  entirely  upon 
the  statutory  provisions  of  the  particular  jurisdiction.  Tt 
may  be  helpful  to  here  collect  instances  of  the  various 
classes  of  causes  of  action  in  which  it  has  been  held  that 
the  right  to  a  change  in  the  place  of  trial  exists ;  but  it 
must  be  remembered  that  each  case  cited  is  governed  by 
the  statutes  of  the  particular  jurisdiction  and  may  not  be 
a  safe  precedent  to  follow  in  a  jurisdiction  in  which  the 
statutory  provisions  are  not  the  same.  Thus  the  right 
has  been  held  to  apply  to  causes  of  actions  and  proceed- 
ings in  justices '  and  mayors '  courts/  but  not  to  superior 
or  other  court  of  another  county,^  and  only  after  final 
judgment  in  some  jurisdictions  f  actions  by  state  con- 
troller to  recover  money  coming  into  defendant's  hands 
in  his  official  capacity;^  action  for  false  imprisonment;^ 
action  for  forcible  entry  and  detainer;^  action  for  pen- 
alty for  violation  of  fish  and  game  laws  -^  action  for  eject- 
ment,'* although  the  contrary  has  been  held;®  action  on 

\  Palmer  v.  Snyder,  67  Cal.  105,  Powell  v.  Sutro,  80  Cal.  559,  24 
7    Pac.    196;     Gross    v.    Superior      Pac.  308. 

Court,    71    Cal.   382,   12   Pac.    264;  3  Evans  v.  Phelps,  77  Iowa  526, 

Luce  V.  Superior  Court,  71  Cal.  555,      ^^  N-  W.  432. 

557,  12  Pac.  677;  Smelzer  v.  Lock-         '  ^tate  v.  Campbell.  3  Cal.  App. 

604,  86  Pac.  841. 

5  Ah  Fong  V.  Sternes,  79  Cal.  30, 
21  Pac.  381. 
Ky.  18;Garst,Inre,10Neb.78,  e  Monson    v.    Coleman.    86    Mo. 


hart,  97  Ind.  315;  Finch  v.  Marvin. 
46  Iowa  384;    Byram  v.  Holliday. 


4  N.  W.  511. 


App.  18. 


On    appeal   from   justices'   court  7  People    v.    Coughtry,    58    Hun 

no  change  allowed  in  Iowa. — Boi-  (n,  y.)    245,  12  N.  Y.  Supp.  259; 

lean  v.  Chicago,  B.  &  Q.  R.  Co.,  69  affirmed,  125  N.  Y.  723.  3  Silv.  Ct. 

Iowa  324,  28  N.  "W.  621.     But  see  App.  Rep.  372. 

Browne  v.  Hickie,  68  Iowa  330,  27  s  Campau  v.  Dew^ey.  9  Mich.  381; 

N.  W.  276.  Meldrum    v.    Servis,    1    N.    J.    L. 

2  Gross  V.  Superior  Court,  71  Cal.  (Coxe)  203. 

382,  12  Pac.  264;  Luco  v.  Superior  9  Atkinson  v,   Holcomb,  4   Cow. 

Court,   71   Cal.   555,   12    Pac.    677;  (N.  Y.)  45. 

498 


I 


ch.  XVII.] 


CAUSES  TO  WHICH  APPLICABIiE. 


§397 


bond,  in  debt;^°  action  to  collect  delinquent  tax  on  real 
estate,  can  be  no  change  to  another  county  ;^^  action  to 
forfeit  franchise  of  corporation;^-  action  to  recover  real 
property  ;^^  action  to  restrain  enforcement  of  judgment;^"* 
action  to  set  aside  conveyance  of  land;^^  action  to  vacate 
decree;^*"'  appeal  from  board  of  highway  commissioners,^" 
board  of  viewers  in  condemnation  proceedings,^^  excise 
commissioners,^^  and  other  boards,  commissions  and  in- 
ferior tribunals ;  and  also  in  bastardy  proceedings ;-'' 
in  causes  not  triable  by  jury;^^  condemnation  pro- 
ceedings prosecuted  under  power  of  eminent  domain  ;-- 


10  Meldrum  v.  Sarvis,  1  N.  J.  L. 
(Coxe)  203. 

11  State  V.  Shaw,  21  Nev.  222,  29 
Pac.  321. 

12  Bel  Air  Social,  Literary,  Musi- 
cal &  Dramatic  Club  v.  State,  74 
Md.  297,  22  Atl.  68. 

13  See  Hancock  v.  Burton,  61 
Cal.  70;  Duffy  v.  Duffy,  104  Cal. 
602,  38  Pac.  443;  Staacke  v.  Bell, 
125  Cal.  309,  314,  57  Pac.  1012; 
Campau  v.  Dewey,  9  Mich.  381. 

Compare:  Deacon  v.  Shreve,  23 
N.  J.  L.  (3  Zab.)  204. 

Fraud  true  basis  of  action,  trans- 
fer to  county  in  which  land  af- 
fected situated  denied  in  Coch- 
rane V.  McDonald,  4  Cof.  Prob. 
(Cal.)  538. 

14  State  V.  Price,  38  Mo.  382. 

15  Henderson  v.  Henderson,  55 
Mo.  534;  Wyatt  v.  Brooks,  42  Hun 
(N.  Y.)  502. 

16  State  V.  Whitcomb,  52  Iowa 
85,  35  Am.  Rep.  258,  2  N.  W.  970. 

17  Schmied  v.  Keeney,  72  Ind. 
309. 

See,  also,  post,  footnote  50,  this 
section. 

18  See,  post,  footnote  22,  this  sec- 
tion. 

I  !>  State  V.  Vierling,  33  Ind.  99; 
Blair  v.  Vierling,  33  Ind.  269;  Blair 


V.  Kilpatrick,  40  Ind.  312;  Blair  v. 
Rutenfranz,  40  Ind.  318. 

See,  also,  post,  footnote  40,  this 
section. 

20  Saint  v.  State,  68  Ind.  128. 

21  See  footnotes  33  and  41,  this 
section. 

Express  statutory  authority  said 
to  be  necessary  for  transfer  of  this 
class  of  causes. — See  Williams,  Ex 
parte,  12  Tenn.  (4  Yerg.)   579. 

In  Oklahoma  right  of  change  de- 
clared not  within  statute. — See 
Dean  v.  Stone,  2  Okla.  13,  35  Pac. 
578. 

22  State  V.  Rowe,  69  Ark.  642,  65 
S.  W.  463;  Whitney  v.  Atlantic 
Southern  R.  Co.,  53  Iowa  651,  6 
N.  W.  32;  Simmons  v.  St.  Paul  & 
C.  R.  Co.,  18  Minn.  184;  Lehmicke 
V.  St.  Paul,  S.  &  T.  F.  R.  Co.,  19 
Minn.  464;  St.  Louis,  O.  H.  &  C.  R. 
Co.  V.  Fowler,  113  Mo.  458,  3  Bal- 
lard's Real  Prop.  317,  20  S.  W. 
1069;  Pinno  v.  Lackawanna  &  B. 
R.  Co.,  43  Pa.  St.  361. 

In  Michigan  a  different  rule  pre- 
vails.— See  Michigan,  O.  &  I.  R. 
Co.  V.  Circuit  Judge,  144  Mich.  44, 
107  N.  W.  704;  followed  in  Grand 
Rapids  &  I.  R.  Co.  v.  Circuit 
Judge,  154  Mich.  493,  117  N.  W. 
1050. 


499 


§397 


CODE    PLEADING    AND    PRACTICE. 


I't.  i. 


contempt  proceedings;-^  disbarment  proceedings;-' 
divorce  proceedings,-^  but  not  of  application  for 
modification  of  judgment  or  decree  as  to  alimony 
or  custody  of  children  ;-^  drainage  proceedings, 
either  for  incorporation  of  district  and  locating  bound- 
aries-' or  location  of  the  ditch  ;-^  election  contest,-'* 
though  the  contrary  has  been  held;^°  garnishment  pro- 
ceedings;^^ habeas  corpus  proceedings;^-  hearing  on 
demurrer  ;^^  insolvency  proceedings  not  removable,-*'* 
but  creditor's  petition  upon  ground  of  defects  is;^" 
interpleader     procedure  f^     mandamus     proceedings ;"' 


— The  reason  for  the  rule  is 
placed  on  the  ground  that  such 
proceedings,  though  subject  to  ju- 
dicial review,  are  not  in  them- 
selves judicial,  the  proceedings 
being  conducted  before  a  tempor- 
ary tribunal  selected  for  the  occa- 
sion.—Toledo,  Ann  Arbor  &  G.  T. 
R.  Co.  V.  Dunlap,  47  Mich.  456,  11 
N.  W.  271;  Port  Huron  &  S.  W.  R. 
Co.  V.  Voorhis,  50  Mich.  506,  15 
N.  W.  882. 

-'3  Crook  V.  People,  16  111.  534; 
State  ex  rel.  Norris  v.  District 
Court,  52  Minn.  283,  59  N.  W.  457; 
Haley,  Ex  parte,  99  Mo.  150;  Penn 
V.  Messinger,  1  Yeates  (Pa.)  2; 
Lamonte  v.  Ward,  36  Wis.  558. 

-'4  Darrow,  In  re,  175  Ind.  44,  92 
N.  E.  369;  see  83  N.  E.  1026;  Grif- 
fin, In  re,  33  Ind.  App.  153,  69  N.  E. 
192;  State  v.  Clarke,  46  Iowa  155; 
Slemmer  v.  Wright,  46  Iowa  705; 
Peyton,  In  re,  12  Kan.  398;  State 
v.  Smith,  176  Mo.  90,  75  S.  W.  586. 

In  Oklahoma  held  otherwise  in 
Dean  v.  Stone,  2  Okla.  13,  35  Pac. 
578. 

25  Usher  v.  Usher,  4  Cal.  Unrep. 
521,  36  Pac.  8;  Warner  v.  Warner, 
100  Cal.  11,  34  Pac.  523;  McPike  v. 
McPike,  10  111.  App.  332;  Evans  v. 
Evans,  105  Ind.  204,  5  N.  E.  24. 
768;  Craven  v.  Craven,  27  Wis. 
418. 


26  Cole  V.  Cole,  89  Mo.  App.  228; 
Bacon  v.  Bacon,  34  Wis.  594;  Hop- 
kins V.  Hopkins,  40  Wis.  462. 

Compare:  McPike  v.  McPike,  10 
111.  App.  332. 

27  State  ex  rel.  Kochtitzky  v. 
Riley,  203  Mo.  175,  12  L.  R.  A. 
(N.  S.)   900,  101  S.  W.  567. 

2S  Bass  V.  Elliott,  105  Ind.   517, 

5  N.  E.  663. 

29  Weakley  v.  Wolf,  148  Ind. 
208,  47  N.  E.  466. 

30  Wise  V.  Martin,  36  Ark.  305. 

31  State  ex  rel.  Wyman,  Par- 
tridge &  Co.  V.  Superior  Court,  40 
Wash.  443,  448,  111  Am.  St.  Rep. 
915,  5  Ann.  Cas.  775.  2  L.  R.  A. 
(N.  S.)   568,  82  Pac.  876. 

32  Garner  v.  Gordon,  41  Ind.  92. 

33  Thurber  v.  Brown,  2  Hill 
(N.  Y.)  382. 

See  footnotes  21  and  41,  this 
section. 

34  Michael  v.  Schroeder,  4  Har. 

6  J.  (Md.)  227;  Scott  v.  Circuit 
Judge,  58  Mich.  311,  25  N.  W.  200; 
Heath,  In  re,  136  Mo.  App.  347, 
117  S.  W.  125;  Acker  v.  Leland, 
96  N.  Y.  383. 

35  Kittridge  v.  Kinne,  80  Mich. 
200,  44  N.  W.  1051. 

36  Giett  V.  McGannon  :Mercantile 
Co.,  74  Mo.  App.  209. 

37  Woodworth  v.  Old  Second 
Nat.  Bank,  144  Mich.  338,  8  Ann. 


500 


ch.  XVII.] 


CAUSES  TO  WHICH  APPLICABLE. 


§397 


motion  for  leave  to  issue  execution  on  dormant  judg- 
ment f^  motion  for  a  new  trial  f'-^  on  certiorari  to  review 
proceedings  in  inferior  court  in  excise  cases, — e.  g.  as  to 
liquor  license;*^  on  issues  of  law;^^  probate  court  pro- 
ceedings*^ where  trial  of  issues  is  involved,'*^  the  appoint- 
ment of  a  guardian/*  and  the  like,  hearing  of  claim 
against  the  estate  of  a  decedent,*^  hearing  of  matters  re- 


Cas.  310,  107  N.  W.  905;  Williams- 
port,  City  of,  V.  Com.,  90  Pa.  St. 
498;  Barnett  v.  Ashmore,  5  Wash. 
163,  31  Pac.  466. 

See  note  8  Ann.  Gas.  311. 

Mandamus  against  county  treas- 
urer to  compel  him  to  pay  to  the 
state  treasurer  certain  moneys  al- 
leged to  be  due  the  state  from  the 
county  on  account  of  children 
committed  from  that  county  to 
the  California  Home  for  Feeble 
Minded  Children,  is  triable  in  the 
county  in  which  the  defendant  re- 
sides, notwithstanding  the  fact 
that  it  is  the  duty  of  the  treasurer 
to  pay  over  the  money  at  the  state 
capital,  where  the  suit  is  brought. 
— State  Commission  in  Lunacy  v. 
Welch,  154  Cal.  775,  99  Pac.  181. 

38  Jaseph  V.  Schneppcr,  1  Ind. 
App.  154,  27  N.  E.  305. 

39  Finn  v.  Spagnoli,  67  Cal.  330, 
7  Pac.  746;  Upton  v.  Upton,  94  Cal. 
26,  27,  29  Pac.  411;  State  ex  rel. 
Carleton  v.  District  Court,  33 
Mont.  138,  145,  8  Ann.  Cas.  752,  82 
Pac.  789. 

40  State  V.  Denton,  128  Mo.  App. 
304,  107  S.  W.  446. 

See,  ante,  footnote  19,  this  sec- 
tion. 

41  Clark  V.  Van  Deusen,  3  N.  Y. 
Code  Rep.  219. 

See  footnote  33,  this  section. 
Construction    of  written    instru- 
ment only  question  in  cause,  which 


was  correctly  decided  by  the  trial 
judge,  his  refusal  to  change  the 
place  of  trial  because  of  his  al- 
leged prejudice,  held  to  be  imma- 
terial in  Goodwin  v.  Goodwin,  65 
111.  497. 

42  People  ex  rel.  Burdell  v. 
Almy,  46  Cal.  245;  Rogers  v.  How- 
ard, 4  Ind.  325;  Townsend  v. 
Townsend,  9  Gill  (Md.)   506. 

Compare:  Carter  v.  Cutting,  2 
Cr.  58,  Fed.  Cas.  No.  2476. 

See,  also,  cases  cited  in  foot- 
notes 43-49.  this  section. 

4  3  White's  Estate,  In  re,  37  Cal. 
190;  People  ex  rel.  Burdell  v.  Pro- 
bate Court,  46  Cal.  245;  Spreckels 
V.  De  Bolt,  16  Hawaii  479;  Rogers 
V.  Howard,  4  Ind.  325;  Townsend 
V.  Townsend,  9  Gill  (Md.)  506; 
Backus  V.  Cheney,  80  Mich.  17,  12 
Atl.  635;  Jackman's  Will  Case,  27 
Wis.  409. 

Compare:  Byram  v.  Holliday,  84 
Ky.  18;  Morris  v.  Lane,  44  Mo. 
App.  1. 

Failure  to  object  waiver  of  right 
to  change  of  place  of  trial.— 
United  Real  Estate  &  Trust  Co.  v. 
Barnes,  159  Cal.  242,  113  Pac.  107. 

See,  also,  ante,  §  388. 

44  Berry  v.  Berry,  147  Ind.  170, 
46  N.  E.  470. 

45  Lester  v.  Lester,  70  Ind.  201 ; 
State  Treasurer  v.  Wygall,  46  Tex. 
447.  But  see  Everroad  v.  Lewis, 
16  Ind.  App.  65,  43  N.  E.  1010. 


501 


§398 


CODE   PLEADING   AND    PRACTICE. 


[Pt.  I, 


garding  tlie  administration  of  an  estate,^®  a  (vill  contest/' 
and  the  like;  but  is  otherwise  as  to  the  probate  of  a  will, 
which  must  be  had  in  the  county  of  the  residence  of  de- 
cedent/^ or  the  trial  of  an  application  for  the  removal  of 
an  administrator/^  proceedings  to  locate  a  highway,''" 
although  the  contrary  has  been  held  f^  quo  warranto  pro- 
ceedings^^ can  be  heard  in  the  court  directed  by  the 
supreme  court,  only/^  in  special  proceedings,  as  distin- 
g-uished  from  civil  actions, ^^  but  where  statute  designates 
the  court,  there  can  be  no  change  in  the  place  of  trial  ;^^ 
and  in  supplementary  proceedings.^® 

§  398.  Who  may  apply  fob  change — Plaintiffs.  The 
plaintilf  as  w^ell  as  the  defendant  may  have  the  place  of 
the  trial  of  an  action  changed  whenever  he  can  show  a 
proper  cause  therefor  under  the  provisions  of  the  statute 
regulating  the  change  of  the  place  of  a  trial  in  the  partic- 
ular jurisdiction/  the  fact  that  the  plaintiff  has  brought 
an  action  in  a  particular  county  does  not  estop  him, — 
should  cause  thereafter  arise  or  be  discovered  there- 
for,— from  applying  for  a  removal  of  the  trial  of  the 


46  Sloss  V.  De  Toro,  77  Cal.  129, 
19  Pac.  233;  Frasier  v.  Circuit 
Judge,  48  Mich.  176;  Treasurer  v. 
Wygall,  44  Tex.  447. 

47  Rogers  v.  Howard,  4  Ind.  325. 

48  Byram  v.  HoUiday,  84  Ky.  18. 

49  Bowen  V.  Stewart,  128  Ind. 
507,  26  N.  E.  168,  28  N.  E.  73. 

50  Schmied  v.  Keeney,  72  Ind, 
309. 

51  Williams,  Ex  parte,  12  Tenn. 
(4  Yerg.)  570. 

52  As  to  proceedings  to  forfeit 
franchise,  see,  ante,  footnote  12, 
this  section. 

53  State  V.  Townsley,  56  Mo.  107. 

54  Weakley  v.  Wolf,  148  Ind.  208. 
47  N.  E.  466;  Hadley,  In  re,  44 
Misc.  (N.  Y.)   265,  89  N.  Y.  Supp. 


910:  Griffin,  In  re,  83  Ind.  App.  153, 
69  N.  E.  192;  Whitney  v.  Atlantic 
&  Southern  R.  Co.,  53  Iowa  651,  6 
N.  W^  32. 

Special  proceeding  for  which 
statute  designates  the  court,  trial 
can  not  be  changed. 

55  Scott  V.  Circuit  Judge,  58 
Mich.  311,  25  N.  W.  200. 

56  Burkett  v.  Holman,  104  Ind.  6, 
3  N.  E.  406;  Burkett  v.  Bowen,  104 
Ind.  184,  3  N.  E.  678;  Burkett  v. 
Bowen,  118  Ind.  379,  381,  21  N.  E. 
38;  Burkett  v.  Haleman,  119  Ind. 
141,  21  N.  E.  470. 

1  Grewell  v.  W  a  1  d  e  n,  23  Cal. 
165;  Payne  v.  Smith,  19  Wend. 
(N.  Y.)  122;  Crary  v.  Reid,  3  How. 
Pr.  (N.  Y.)  76. 


502 


i|| 


eh.  XVII.]  CHANGE— BY   DEFENDANT.  §  399 

cause  to  another  county.^  When  on  application  by  the 
plaintiff  for  a  change  of  venue  there  are  no  opposing 
affidavits,  it  is  error  for  the  trial  court  to  refuse  to  grant 
the  application.^  Where,  however,  there  are  conflicting 
rights,  or  if  the  motion  be  made  on  the  ground  of  the 
convenience  of  witnesses,  and  there  are  conflicting  affi- 
davits, the  court  may  exercise  its  discretion,  and  its  ruling 
will  not  be  disturbed  except  in  cases  where  this  discretion 
has  been  abused.^  The  mere  preponderance  of  witnesses 
on  one  side  is  not  necessarily  decisive  of  the  motion.^  Nor 
is  the  court  bound,  of  its  own  motion,  to  change  the  venue. 
The  right  to  a  change  is  a  mere  privilege  which  may  be 
waived."  The  proceeding  being  purely  statutory,  is  gov- 
erned by  the  statutory  provisions  and  the  judicial  deci- 
sions of  the  particular  jurisdiction. 

§  399.  Defendants — In  general.  Under  the  Cali- 
fornia statute, — and  the  same  is  true  in  all  jurisdictions 
having  the  same  or  a  similar  statutory  provision, — the 
defendant  has  a  right  to  have  the  cause  of  action  tried  in 
the  county  of  his  residence,  except  where  it  is  otherwise 
provided  by  statutory  enactments.  And  a  court  has  no 
jurisdiction  to  try  an  action  against  a  defendant  who  is 
not  a  resident  of  the  county  and  has  not  been  served  with 
process  therein,  if  the  defendant,  at  the  time  he  appears 
and  demurs  or  answers,  files  an  affidavit  of  merits  and 
demands  that  the  trial  be  had  in  the  proper  county.^  The 
right  of  the  defendant  to  have  the  venue  changed  to  the 

2  Willoughby  v.  Northeastern  R.  Hearne  v.  De  Young,  111  Cal.  373, 

Co.,  46  S.  C.  317,  24  S.  E.  308.  43  Pac.  l'\S;  Wadleigh  v.  Phelps, 

3Grewell  v.  W  a  1  d  e  n,  23   Cal.  147    Cal.    541,    543,    82    Pac.    200; 

165.  Scott  V.  Hoover,  99  Fed.  249. 

4  See,   post,   §  420.  See.  also,  ante,  §  288. 

fi  Hanchett  V.  Finch,  47  Cal.  192;  Kennedy  v.  Derrickson,  ")  Wash. 

Cook  V.  Pendergast.  61  Cal.  72;  289.  31  Pac   366. 
Bird  V.  Utica  Gold  Min.  Co.,  2  Cal.  i  See:    Watkins   v.    Degener,    63 

App.  673.  86  Pac.  509.  Cal.  500:    State  ex  rel.  Cumniings 

<i  Pearkes  v.  FYeer.  9   Cal.   642;  v.  Superior  Court,  5  Wash.  518,  32 

Watts  V.  White.  13  Cal.  324;  Cook  Pac.  457,  771. 
V.  Pendergast,  61  Cal.  72,  78;  See,  also,  supra,  §395. 

503 


§  399  CODE  PLEADING  AND  PRACTICE.  [Ft.  I, 

county  of  his  residence  is  not  affected  by  the  joinder  of 
another  defendant  who  is  not  a  necessary  party,-  and 
against  whom  no  cause  of  action  is  stated.^  So  where 
the  complaint  contains  two  causes  of  action  in  tort,  and 
in  the  first  cause  of  action  the  county  in  which  the  tort 
was  committed  is  stated,  but  in  the  second  it  is  not,  a 
change  of  venue  is  properly  granted  to  the  county  of  the 
defendant's  residence  upon  the  second  cause  of  action, 
and  the  defendant's  right  to  such  change  can  not  be 
abridged  by  reason  of  the  first  cause  of  action  being  prop- 
erly triable  in  the  county  where  the  action  was  com- 
menced.^ The  venue  of  an  action  for  damages,  com- 
menced in  a  county  in  wliich  none  of  the  defendants 
reside,  will  be  changed  to  the  proper  county  on  the  appli- 
cation of  the  defendants  who  have  appeared.^  But  if  one 
of  the  defendants  resides  in  the  county  in  which  the  action 
is  commenced,  it  may  properly  be  tried  there,  and  an 
order  refusing  to  change  the  venue  to  the  county  in  which 
other  of  the  defendants  reside  will  not  be  disturbed.^  At 
least,  a  motion  to  change  the  venue  to  a  county  in  which 
other  of  the  defendants  reside  will  not  be  granted,  unless 
all  of  the  defendants  join  in  the  motion,'^  or  unless  good 
reason  is  shown  why  they  have  not  so  joined.^  Under 
the  constitution  of  California,^  in  an  action  against  a  cor- 

2  See,. ante,  §§  365,  366.  4  See:    All  Fong  v.   Sternes,   79 

?.  Say  ward  v.  Houghton,  82  Cal.  Cal.    30,    21   Pac.   381;    Yore   v. 

628,  23  Pac.  120;  McKenzie  V.  Barl-  Murphy,    10    Mont.    304,    25    Pac. 

ing,  101  Cal.  459,  461,  36  Pac.  8;  1039. 

Brady    v.    Times-Mirror    Co.,    106  5  Rathgeb  v.   Tiscornia,   66   Cal. 

Cal.  56,  59,  60,  39  Pac.  209;   Read  96,  4  Pac.  987. 

V.   San   Diego  Union  Co.,   6   C  a  1.  6  Hirschfeld   v.    Sevier,    77    Cal. 

Unrep.  703,  65  Pac.  567;  Anaheim  448,   19  Pac.  819.     See:    Cochrane 

Odd  Fellows'  Hall  Assoc,  v.  Mitch-  v.   McDonald,   4   Cof.   Prob.    (Cal.) 

ell,  6  Cal.  App.  433,  92  Pac.  332;  538,  545;    Kennedy  v.  Derrickson, 

Ha'nnon  v.  Nuevo  Land  Co.,  14  Cal.  5  Wash.  289,  31  Pac.  366. 

App.   704,   112   Pac.   1105;    Bartley  7  See,  post,  §400. 

V.    Fraser,    16    Cal.    App.    566,    117  8  McKenzie  v.  Barling,  101  Cal. 

Pac.  685;  State  ex  rel.  Campbell  v.  459,  36  Pac.  8. 

Superior   Court,    7   Wash.   306,   34  9  Cal.  Const.  1879,  art.  XII,  §  1G, 

Pac.  1103.  Henning's  Gen.  Laws,  2d  ed.,  p.  81, 

504 


ch.  XVII.]  CHANGE BY    DEFENDANT.  §  313! • 

poration  to  recover  damages  for  the  breach  of  a  contract, 
the  defendant  is  entitled  to  a  change  of  venue  to  the 
county  in  which  its  principal  place  of  business  is  situated, 
when  the  county  in  which  the  action  was  brought  is  not 
the  one  in  which  the  contract  was  made  or  was  to  be  per- 
formed, or  in  which  the  obligation  or  liability  arose  or 
the  breach  occurred,  or  in  which  the  principal  place  of 
business  of  the  corporation  is  situated.^"  In  action  to 
recover  for  personal  injuries  or  for  tort  or  unlawful 
death,  the  action  may  be  brought  either  in  the  county  in 
which  the  act  complained  of  occurred  or  in  the  county  in 
which  the  corporation  has  its  principal  office  and  place  of 
business.^ ^  But  where  a  corporation  is  sued  in  any  one 
of  the  counties  mentioned  in  this  section  of  the  constitu- 
tion, it  can  not  demand  a  change  of  venue  as  matter  of 
absolute  right,  but  only  as  in  other  cases  and  for  other 
reasons  than  that  the  county  in  which  the  action  is  com- 
menced is  not  the  proper  county.^-  The  provision  of  the 
constitution  is  permissive,  not  mandatory.^^  One  who  is 
involuntarily  substituted  as  the  sole  defendant  in  an 
action^'*  is  entitled  to  a  change  of  venue  to  the  county  in 
which  he  resides,  notwithstanding  the  failure  of  the  orig- 

10  Cohn  V.  Central  Pac.  R.  Co.,  Actions  for  damages  for  p  e  r- 
71  Cal.  488,  12  Pac.  498;  Byrum  sonal  injuries,  the  rule  is  the  same. 
V.  Stockton  Combined  Harvester  — Lewis  v.  Southern  Pac.  Coast  R. 
&  Agr.  Works,  91  Cal.  657,  27  Pac.  Co.,  66  Cal.  209,  5  Pac.  79;  Oels 
1093.  V.  Helena  &  L.  Smelting  &  Reduc- 

11  See,  ante,  §  372.  tion    Co.,    10    Mont.    524,    26    Pac. 

12  Fresno  Nat.  Bank  v.  Superior  1000. 

Court,    83    Cal.    491,    498,    24    Pac.  See  discussion  and  cases  cited, 

157;    Trezevant  v.    Strong   Co.,  ante,  §372. 

W.   R.,   102  Cal.   47,   36   Pac.   395;  1 3  Fresno  Nat.  Bank  v.  Siiperior 

Haas   V.    Mutual   Relief   Assoc,   5  Court,    83    Cal.    491,    24    Pac.    157. 

Cal.  Unrep.  180,  42  Pac.  237;  Cook  See:  Miller  &  Lux  v.  Kern  County 

V.  Ray  Mfg.  Co.,  159  Cal.  697,  115  Land    Co.,    6    Cal.    Unrep.    <',SI.    (r> 

Pac.    319;    Eddy    v.    Houghton,    6  Pac.    313;    Bond    v.    Karnui-Ajax 

Cal.  App.  85,  91  Pac.  397;    Krogh  Consol.  Min.  Co.,  15  Cal.  App.  474, 

V.   Pacific  Gateway   &   Devel.   Co.,  115  Pac.  256. 

11    Cal.    App.    437,    440,    104    Pac.  1 4  Under  Kerr's  Cyc.  Cal.   Code 

698.  Civ.  Proc,  §  386. 

505 


s^400 


CODE  PLEADING  AND  PRACTICE. 


[Pi.  I 


inal  defendant  to  demand  such  a  cbange.^^  But  in  those 
cases  in  which  the  intervention  is  voluntary  on  the  part 
of  a  person  who  may  be  liable  to  the  defendant  in  the 
event  of  a  recover^'  against  him,  the  rule  is  different,^** 
because  intervention  can  be  permitted  for  the  protection 
of  substantial  rights,  only,^"  and  if  a  party  does  not  like 
the  form  of  the  action  or  the  place  of  the  trial  he  should 
not  seek  to  become  a  party  to  the  action. ^^ 


§400. 


Co-DEFEXDANTs  MUST  JOIN.     The  rule 


is  well  settled  in  California  that  all  of  the  defendants 
must  join  in  the  application  for  a  change  of  the  place  of 
trial,  or  a  good  reason  shown  why  they  do  not;^  otherwise 
it  will  be  denied.-  Complaint  showing  on  its  face  that 
both  resident  and  nonresident  defendants  are  unneces- 
sary parties,  they  occupy  the  same  relation  to  each  other 
as  they  would  if  necessary  parties,  and  rights  of  resident 
defendant  determine  place  of  trial. '^  The  motion  may  be 
made  by  one  of  several  defendants^  on  notice  to  the  other 


15  Howell  V.  Stetefeldt  Furnace 
Co.,  69  Cal.  153,  10  Pac.  390. 

16  See  German  Sav.  Bank  v. 
Citizens'  Nat.  Bank,  101  Iowa  530, 
63  Am.  St.  Rep.  399,  70  N.  W.  769. 

IT  Kenner's  Syndics  v.  Holliday, 
19  La.  154. 

IS  Id.  See,  also,  note,  16  Am. 
Dec.  180. 

1  Fickens  v.  Jones  (unreported, 
decided  Oct.  1863),  2  Park.  Cal. 
Dig.,  p.  83,  §29;  Pieper  v.  Cen- 
tinela  Land  Co.,  56  Cal.  173,  175: 
McKenzie  v.  Barling,  101  Cal.  4.59. 
36  Pac.  8;  Sailly  v.  Hutton,  6 
Wend.  (N.  Y.)  508;  Legg  v.  Dor- 
sheim,  19  Wend.  (N.  Y.)  700; 
Welling  V.  Sweet,  1  How.  Pr. 
(N.  Y.)  156;  Simmons  v.  McDoug- 
all,  2  How.  Pr.  (X.  Y.)   77. 

Corporation  and  personal  defen- 
dants in  transitory  action  brought 
outside  of  the  county  of  the  resi- 


dence of  the  personal  defendants, 
the  fact  that  the  corporation  did 
not  unite  in  the  demand  for  a 
change  of  the  place  of  trial  to  the 
county  of  the  residence  of  such 
personal  defendants,  was  held  not 
to  affect  their  right  to  such  change 
in  the  absence  of  a  showing  that 
the  action  was  brought  in  the 
county  in  which  the  corporation 
had  its  principal  office  and  place 
of  business,  in  Pittsman  v.  Car- 
stenbrook.  11  Cal.  App.  224,  227, 
104  Pac.  699. 

2  Id. 

3  Hannon  v.  Nuevo  Land  Co., 
14  Cal.  App.  700,  704-5,  112  Pac. 
1103,  following  McKenzie  v.  Barl- 
ing, 101  Cal.  459,  36  Pac.  8. 

4  See:  McSherry  v.  Pennsyl- 
vania Consol.  Gold  Min.  Co.,  97 
Cal.  637,  32  Pac.  711;  Bachman  v. 
Cathry,  113  Cal.  498,  45  Pac.  814; 


506 


eh.  XVII.]  AFFIDAVIT   OF    MERITS.  §401 

defendants,  unless  they  be  in  default ;  or  a  defendant  sub- 
sequently served,  after  a  similar  motion  by  another  de- 
fendant has  been  denied,  may  move  for  a  change  of  place 
of  trial. •'^^  This,  however,  can  not  be  done  where  part  of 
the  defendants  live  in  the  county  where  the  action  is 
brought,  if  the  motion  is  made  on  the  ground  that  the 
action  is  not  brought  where  defendants  reside.*^  In  an 
action  to  determine  rights  to  real  estate  against  several 
parties,  a  defendant  is  entitled,  as  a  matter  of  right,  to 
have  the  action  tried  in  the  county  in  which  the  real  estate 
is  situated,'^  and  all  the  defendants  need  not  join  in  claim- 
ing such  rights.''  So,  if  several  defendants  are  sued  as 
sureties  on  a  bond,  an  affida\dt  of  merits''  in  support  of  a 
motion  for  a  change  of  the  place  of  trial  need  not  be  made 
by  more  than  one  of  them.^"  And  an  application  for  a 
change  of  the  place  of  trial  to  the  proper  county,  made  by 
all  the  defendants  who  had  been  served  at  the  time,  can 
not  be  adversely  affected  by  the  fact  that  before  its  deter- 
mination another  defendant  has  been  served,  but  has 
failed  to  join  in  the  application.^^ 

§  401.  Affidavit  of  merits — In  general.  The  Cali- 
fornia Code  of  Civil  Procedure  requires  that  a  defendant 
seeking  a  change  in  the  place  of  trial  of  the  cause,  at  the 
time  of  filing  his  answer  or  demurrer,  shall  file  an  affidavit 

Mairs   v.   Remsen,   3    N.    Y.    Code  trial  to   the   county  in  which  the 

Rep.   138;    Bergman   v.   Noble,    10  land  affected  is  located  does  not 

N.  Y.  Civ.  Proc.  Rep.  190.  prevail. — Cochrane  v.  McDonald,  4 

5  New  Jersey  Zinc  Co.  v.  Blood,  Cof.  Prob.  (Cal.)  537,  545. 

8  Abb.  Pr.  (N.  Y.)  147.  ^  ^^  *°  affidavit  of  merits,  see, 

«  See  Kerr's  Cyc.  Cal.  Code  Civ.  P^^^'  §§  ^01-404. 


Proc,  2d  ed.,   §395;    Consolidated 
Supp.  1906-1913,  p.  1425. 


10  Rowland  v.  Coyne,  55  Cal.  1; 
People    ex    rel.    Board    of    Harbor 
Commrs.   v.   Larue,   66  Cal.   235,   5 
7  See.  ante,  §§323  and  324.  p^^     j^..    p^,,^^^^   ^     n-avc\ay.   92 

sSee:  O'Neil  v.  O'Neil,  54  Cal.  cal.  199,  28  Pac.  226;  McSherry 
187,  188;  Warner  v.  Warner,  100  y.  Pennsylvania  Consol.  Gold  Min. 
Cal.  11,  16,  34  Pac.  523.  Co.,  97  Cal.  637,  32  Pac.  711. 

Fraud  basis  of  action  the  rule  as  ii  Gtate  ex  rel.  Allen  v.  Superior 

to    right    to    change    the    place   of      Court,  9  Wash.  668,  38  Pac.  206. 

507 


§  402  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

of  merits,^  without  any  specific  provision  as  to  what  that 
affidavit  shall  contain  or  by  whom  it  shall  be  made,  where 
there  is  more  than  one  defendant;  these  matters  have 
been  left  entirely  to  judicial  interpretation. 

§  402.    Form  and  sufficiency  of  affidavit.^     An 

affidavit  of  merits  must  be  in  the  usual  form  of  affidavit 
sworn  to  by  one  of  the  defendants^  appearing  and 
answering  or  demurring  in  the  action,  and  is  sufficient 
where  it  states  that  the  affiant  is  a  defendant  in  the  action 
and  has  a  personal  knowledge  of  all  the  matters  to  be  put 
in  issue  therein ;  that  he  has  fully  and  fairly  stated  all  the 
facts  to  his  attorney,  giving  the  name  of  such  attorney, 
and  that  after  said  statement  was  informed  by  such 
attorney  that  he  had  a  good  and  valid  defense  to  said 
action,  and  that  he  verily  believes  that  he  has  such  de- 
fense.^ But  it  is  not  sufficient  to  allege  in  such  affidavit 
that  affiant  has  ''fully  stated  his  cause" ;^  or  has  ''fully 
stated  his  defense";^  or  has  stated  "all  the  grounds  of 


1  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §395;  Consolidated 
Supp.  1906-1913,  p.  1425. 

1  As  to  form  of  affidavit  of 
merits,  see  Jury's  Adjudicated 
Forms  of  Pleading  and  Practice, 
vol.  2,  p.  1815,  form  No.  1099. 

2  See,  post,  §  403. 

3  Rowland  v.  Coyne,  55  Cal.  1,  4. 
Defendant  a  counselor  at  law,  it 

seems  that  the  affidavit  of  merits 
m  a  y  be  modified  accordingly. — 
Cromwell  v.  Van  Rensselaer,  3 
Cow.    (N.  Y.)   346. 

Facts  relied  upon  as  a  defense 
need  not  be  stated  in  the  affidavit 
of  merits. — State  ex  rel.  Stephens 
V.  District  Court,  43  Mont.  571, 
Ann.  Cas.  1912C.  343,  118' Pac.  268. 

Failure  to  allege  defendant  be- 
lieved   the   advice   of   his   counsel 


that  he  had  a  good  defense,  does 
not  render  an  affidavit  of  merits, 
otherwise  good  and  sufficient,  de- 
fective.—Watt  v.  Bradley,  95  Cal. 
415,  30  Pac.  557. 

4  People  ex  rel.  State  Board  of 
Harbor  Commrs.  v.  Laure,  66  Cal. 
235,  236,  5  Pac.  157;  Johnson  v. 
Walden  (Cal.  Sept.  18,  1886),  12 
Pac.  257;  Cooper-Power  v.  Hanlon, 
7  Cal.  App.  725,  95  Pac.  679. 

Alleging  he  stated  "his  case"  to 
his  counsel  is  equivalent  to  saying 
that  he  stated  "his  defense,"  and 
not  equivalent  to  saying  that  he 
stated  "the  case." — People  ex  rel. 
State  Board  of  Harbor  Commrs. 
v.  Laure,  66  Cal.  235,  236,  5  Pac. 
157. 

5  Nickerson  v.  California  Raisin 
Co.,  61  Cal.  268. 


508 


Ch.  XVII.]  AFFIDAVIT    OP    MERITS— AMENDING.  §§408,404 

his  defense";*'  or  ''all  facts  of  liis  defense";"  or  lias 
''fully  and  fairly  stated  all  the  facts  constituting  his  de- 
fense";'^ or  has  fully  stated  "the  case  in  this  action";®  or 
has  stated  "all  the  facts. "^^  It  must  appear  from  the 
face  of  the  affidavit  that  affiant  has  stated  to  his  attorney' 
all  the  facts  in  the  case,  and  after  such  a  statement  was 
informed  by  such  attorney  that  he  had  a  good  and  suf- 
ficient defense. 

§  403. Amendment  op  affidavit  of  merits. 

The  trial  court,  in  the  exercise  of  a  sound  discretion,  may 
permit  the  amendment  of  an  insufficient  affidavit  of  mer- 
its,^ and  the  objection  that  the  amended  affidavit  can  not  be 
considered  for  the  reason  that  it  was  not  filed  at  the  time 
of  filing  the  answer  or  demurrer,  as  the  Code  of  Civil 
Procedure  requires,^  is  not  available;^  and  such  amended 
affidavit  of  merits,  otherwise  sufficient,  will  be  good  if 
sworn  to  by  a  co-defendant  other  than  the  one  who  veri- 
fied the  original  affidavit  of  merits.* 

§  404.    By  one  co-defendant  for  all.  Where  there 

are  two  or  more  defendants  in, an  action  in  which  a  change 
in  the  place  of  the  trial  is  sought,  it  is  not  necessary  that 
all  the  defendants  should  sign  the  affidavit  of  merits  or 
each  make  a  separate  affidavit  of  merits,  where  all  join  in 
the  demand  for  such  change.  Thus  it  has  been  expressly 
held  that  an  affidavit  of  merits,  used  at  the  hearing  of  a 
motion  for  a  change  in  the  place  of  trial  of  a  cause,  in 
behalf  of  each  and  all  of  the  defendants,  made  by  one  of 

6  Johnson  V.  Walden  (Cal.  Sept.  lo  Jensen  v.  Dorr,  9  Cal.  App. 
18,  1886),  12  Pac.  257.  19,  98  Pac.  46. 

7  Morgan  v.  McDonald,  70  Cal.  i  See:  Burnham  v.  Hays,  3  Cal. 
32,  11  Pac.  350;  Palmer  v.  Bar-  115,  58  Am.  Dec.  389;  Palmer  v. 
clay,  92  Cal.  199,  201,  28  Pac.  226.  Barclay,  92  Cal.  199,  201,  28  Pac. 

8  Palmer  v.  Barclay,  92  Cal.  199,  226;    Pittman  v.  Carstenbrook,  11 
201,  28  Pac.  226;  Cooper-Power  v.  Cal.  App.  230,  104  Pac.  702. 
Hanlon,  7   Cal.  App.   725,  95   Pac.  2  See,  ante,   §  401. 

679.  3  Palmer  v.  Barclay,  92  Cal.  199, 

9  Watkins    v.    Degener,    63    Cal.       202,  28  Pac.  226. 
500.  4  Id. 

509 


§405 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  T, 


the  co-defendants  therein,  wliicli  recites  that  the  affiant 
makes  it  for  each  and  all  of  the  defendants  and  at  their 
request,  and  that  the  affiant  and  the  other  co-defendants 
have  fully  and  fairly  stated  the  facts  of  the  case  to  tlieir 
respective  attorneys,  who,  upon  such  statement  advised 
(or  informed)^  each  and  all  of  them  that  they  had  a  good 
and  substantial  defense  upon  the  merits  of  the  action, 
which  each  and  all  of  them  believed  to  be  true,  is  in  all 
respects  sufficient,  and  is  not  objectionable  because  made 
by  one  of  the  co-defendants  only.^ 

<§.  405.  Causes  or  grounds  for  change  of  place  of  trl\l. 
Under  the  provisions  of  the  California  Code  of  Ci\dl  Pro- 
cedure,^ if  the  county  in  which  the  action  be  commenced 
is  not  the  proper  county  for  the  trial  thereof,  the  defen- 
dant has  a  statutory  right  to  have  the  same  transferred 
to  such  county,-  and  the  court  has  no  discretion  but  to 
grant  it.^  It  may,  however,  be  tried  in  the  county  in  which 
the  action  is  brought,  unless  the  defendant,  at  the  time  he 
appears  and  answers  or  demurs,  files  an  affida\dt  of 
merits,  and  demands,  in  w^riting,  that  the  trial  be  had  in 
the  proper  county.^  Besides  the  right  of  the  defendant 
to  a  change  of  venue  because  the  county  designated  in  tlie 
complaint  is  not  the  proper  county,  the  court  may  also, 
on  motion,  change  the  place  of  trial  (1)  when  there  is 
reason  to  believe  that  an  impartial  trial  can  not  be  had 
therein;^  (2)  when  the  convenience  of  ^vitnesses  and  the 


1  "Informed"  instead  of  "ad- 
vised" was  held  to  be  sufficient  in 
an  affidavit  of  merits  in  Rowland 
V.  Coyne,  55  Cal.  1,  4. 

2  Palmer  v.  Barclay,  92  Cal.  199, 
202,  28  Pac.  226.  See  McSherry  v. 
Pennsylvania  Consol.  Gold  M  i  n. 
Co.,  97  Cal.  637,  642,  32  Pac.  711. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §397;  Consolidated 
Supp.  1906-1913,  p.  1429. 

2  Id.,  par.  1;  Hennessy  v.  Nicol, 
105   Cal.   138,   139,   38   Pac.   649: 


Wasson  v.  Hoffman,  4  Colo.  App. 
491,  36  Pac.  445. 

3  Id. ;  S  t  a  t  e  ex  rel.  Colgan  v. 
Campbell,  3  Cal.  App.  602,  605,  86 
Pac.  840. 

■i  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §396;  Consolidated 
Supp.  1906-1913,  p.  1427. 

5  Id.,  §  397,  par.  2. 

Bias  and  prejudice  of  vicinage 
alleged  and  tried  upon  conflicting 
affidavits,  the  voir  dire  examina- 
tion   of   jurors    not   being   in    the 


ilO 


ch.  XVII.] 


GROUNDS    FOR    ClIAXGE, 


§405 


ends  of  justice  would  be  promoted  by  the  change;^  and 
(3)  when  from  any  cause  the  judge  is  disqualified  from 
acting.'^  The  court  has  no  authority  to  change  the  place 
of  trial  of  a  civil  cause  except  as  provided  by  statute.^ 
If  the  defendant  desires  a  change  of  the  place  of  trisd,  on 
the  gi'ound  that  the  county  designated  in  the  complaint  is 
not  the  proper  county,  he  must  demand  a  transfer  at  the 
time  he  appears  by  demurrer  or  answer,^  and  when  so 
made  can  not  be  resisted  on  ground  of  convenience  of 
Avitnesses.^"  If  his  motion  to  change  the  place  of  trial  is 
brought  to  a  hearing  before  he  has  answ^ered,  the  plaintiff 
can  not,  by  a  cross-motion,  demand  the  retention  of  the 
action  in  the  county  where  it  is  pending,  on  the  ground 
of  convenience  of  witnesses  and  the  promotion  of  the  ends 
of  justice. ^^    It  is  only  in  cases  wh'ere  the  change  is  asked 


record,  a  denial  of  the  motion  will 
not  be  reviewed  on  appeal. — Car- 
penter V.  Sibley,  13  Cal.  App.  592, 

119  Pac.  391. 

6  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §397,  par.  3;  Con- 
solidated Supp.  1906-1913,  p.  1429. 

Conclusions  of  law  in  counter- 
affidavits  can  not  be  considered  on 
the  hearing  of  the  motion  for  a 
change  of  a  place  of  trial  for  the 
convenience  of  witnesses.  —  See 
Carr  v.    Stern,   17   Cal.    App.   405, 

120  Pac.   35. 

7  Id.,  §  397,  par.  4. 

s  Commercial  Nat.  Bank  v. 
Davidson,  18  Ore.  57,  58,  22  Pac. 
517. 

9  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §396;  Consolidated 
Supp.  1906-1913,  p.  1427;  Pearkes 
v.  Freer,  9  Cal.  642;  Cook  v.  Pen- 
dergast,  61  Cal.  72,  78;  Pennie  v. 
Visher,  94  Cal.  323,  29  Pac.  711; 
Dennison  v.  Chapman,  102  Cal. 
618,  36  Pac.  943;  Smith  v.  Pelton 
Water  Wheel  Co.,  151  Cal.  401,  90 
Pac.  933. 


After  demurrer  to  amended 
complaint  is  too  late. — Jones  v. 
Frost,  28  Cal.  246. 

Answer  filed  contemporaneously 
with  demand  for  change  of  place 
of  trial  does  not  constitute  a 
waiver  of  the  right  to  a  change.— 
Mohe  V.  Reynolds,  38  Cal.  560,  562. 

Answer  without  objection  to  the 
jurisdiction  of  the  court  is  a 
waiver  of  the  right  to  a  change  of 
the  place  of  trial. — Clarke  v.  Lyon 
County,   8  Nev.  186. 

General  demurrer  constitutes  a 
waiver  of  the  right. — Scott  v. 
Hoover,  99  Fed.  248. 

As  to  waiver  and  estoppel,  see, 
ante,   §§  357  and  388. 

10  Cook  V.  Pendergast,  61  Cal. 
72,  76 ;  Armstrong  v.  Superior 
Court,  63  Cal.  411. 

11  See:  Tooms  v.  Randall,  3  Cal. 
438;  Reyes  v.  Sanford,  5  Cal.  117; 
Pearkes  v.  Freer,  9  Cal.  642;  Jones 
V.  Frost,  28  Cal.  245,  246;  Mohe 
V.  Reynolds,  38  Cal.  560;  Cook  v. 
Pendergast.  61  Cal.  72,  79;  Heald 
V.  Hendy,  65  Cal.  321,  4   Pac.   27. 


511 


§406 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


because  the  county  designated  in  the  complaint  is  not  the 
proper  county  that  the  motion  for  the  change  must  pre- 
cede or  accompany  the  answer  or  demurrer.^-  The  motion 
may  be  made  by  the  defendant,  on  any  other  statutory 
ground,  without  the  affidavit  of  merits  and  demand,  within 
a  reasonable  time  after  his  appearance, ^^  Such  motions, 
however,  being  dilatory,  must  be  prosecuted  with  dili- 
gence.^* 

§  406.  Counter-motion  to  retain  cause.  In  those  cases 
in  which  a  demand  is  made  for  a  change  of  the  trial  of  a 
cause  at  the  time  of  filing  an  answer  on  the  merits,^  on  the 
ground  that  the  action  is  brought  in  a  county  other  than 
that  of  the  defendant's  residence,  the  plaintiff,  if  he 
wishes  to  have  the  action  tried  in  the  county  in  which  it 
w^as  commenced,  on  account  of  the  convenience  of  wit- 
nesses, must  make  a  counter-motion  to  have  the  cause 


Answer  must  be  in  before  either 
party  can  move  on  ground  of  con- 
venience of  witnesses.  —  Cook  v. 
Pendergast,  61  Cal.  72,  79;  Thomas 
V.  Placerville  Gold  Quartz  M  i  n. 
Co.,  65  Cal.  GOO,  601,  4  Pac.  641; 
Wong  Fung  Hing  v.  San  Francisco 
Relief  &  Red  Cross  Funds,  15  Cal. 
App.  537,  539,  115  Pac.  331. 

— Remand  motion,  on  ground  of 
convenience  of  witnesses,  can  not 
he  made  until  the  answer  is  filed 
and  the  issues  of  fact  are  joined. 
— Pascoe  v.  Baker,  158  Cal.  234, 
110  Pac.  816. 

12  See  Pascoe  v.  Baker,  158  Cal. 
232,  104  Pac.  699. 

13  In  Colorado,  and  the  same  is 
true  in  other  jurisdictions  with 
like  statutory  provisions,  the  ap- 
plication for  a  change  in  the  place 
of  trial  must  be  made  at  the 
earliest  moment. — Roberts  v.  Peo- 
ple, 9  Colo.  458,  13  Pac.  630. 

In  Nevada  an  unjustifiable  delay 


in  making  application  for  a  chango 
of  the  place  of  trial  for  the  con- 
venience of  witnesses,  alone,  will 
take  away  discretion  of  trial  court 
to  order  the  change. — Sheckles  v. 
Sheckles,  3  Nev.  404,  406. 

Fact  cause  set  for  trial  on  a 
certain  day  should  not  interfere 
with  the  application,  unless  there 
has  been  delay  in  making  the  ap- 
plication, or  the  parties  have 
already  prepared  for  trial,  sub- 
poenaed witnesses,  etc. — Id. 

i-t  Cook  V.  Pendergast,  61  Cal. 
72-78. 

1  Answer  must  be  in  before 
counter-motion  can  be  made  to  re- 
tain cause  on  ground  of  conveni- 
ence of  witnesses. — See  authorities 
cited  in  footnotes  5  and  6,  this 
section. 

This  point  was  made  by  counsel 
in  Jenkins  v.  California  Stage  Co., 
22  Cal.  537,  but  overlooked  by  the 
court  ver\'  improperly.  See  Cook 
V.  Pendergast,  61  Cal.  72,  77,  78. 


512 


Ch.  XVII.]  DEMAND  FOR  CHANGE.  §  407 

retained.^  He  can  not  permit  the  place  of  trial  to  be 
changed  and  then  move  to  return  the  cause  to  the  former 
county.^  But  in  those  cases  in  which  the  defendant  files 
a  demand  and  motion  for  a  change  of  the  place  of  trial  of 
the  cause  to  the  county  of  his  residence  upon  filing  a 
special  demurrer,  and  before  the  issues  are  joined  upon 
the  merits,  the  plaintiff  can  not  by  counter-motion,  de- 
mand the  retention  of  the  cause  in  the  county  in  which 
action  brought  on  the  ground  (1)  of  convenience  of  wit- 
nesses, and  (2)  on  the  ground  that  an  impartial  trial  can 
not  be  had  in  the  county  to  which  it  is  sought  to  have  the 
trial  transferred.^  The  reason  for  the  rule  is  the  fact  that 
it  is  impossible  to  determine  the  question  of  the  conven- 
ience of  witnesses  before  the  answer  is  in  and  the  issues 
made  up.^ 

§  407.  Demand  for  change  of  place  of  trial.^  Under 
the  provisions  of  the  California  Code  of  Civil  Procedure, 
where  a  transitory  action  of  the  residentiary  class  is  com- 
menced in  a  county  other  than  that  of  the  residence  of  the 
defendant,  if  he  desires  to  have  the  trial  of  the  cause 
removed  to  the  proper  county,  at  the  time  of  filing  his 

-■  Loehr  v.  Latham,  15  Cal.  418;  Co.,  48  Cal.  460;   Clanton  v.  RufE- 

Jckins    V.    California    Stage    Co.,  ner,  78  Cal.  268,  269,  20  Pac.  676. 
22  Cal.  537;  Edwards  v.  Southern  4  McSherry  v.  Pennsylvania  Con- 

Pac.  R.  Co.,  48  Cal.  460.  sol.  Gold  Min.  Co.,  97  Cal.  637,  641, 

Convenience    of    witnesses  32    Pac.   711. 
ground    for    denying    motion    for  Motion  to  retain  cause  can  not 

change  to  county  of  residence  of  be  made  until  issue  joined. — Heald 

defendant.  —  Jones    v.    Swank,    54  v.  Hendy,  65  Cal.  321,  4  Pac.  27; 

Minn.  259,  264,  55  N.  W.  1126.  Pascoe  v.  Baker,  158  Cal.  233,  110 

In  South   Dakota  defendant  has  Pac.   816. 
an  absolute  right  to  have  the  place  5  Cook  v.  Pendergast,  61  Cal.  72, 

of  trial  changed  to  his  county,  and  77,  78,  criticising  Jenkins  v.  Cali- 

this  right  can  not  be  defeated  by  fornia  Stage  Co.,  22  Cal.   537,  on 

the   convenience  of  witnesses. —  this   point. 

Small  V.  Gilruth,  8  S.  D.  287,  290,  i  For  form  of  demand  for  change 

66  N.  W.  452.  of   place   of   trial,   see   Jury's   Ad- 

3  Pierson    v.    McCahill,    22    Cal.  judicated    Forms   of   Pleading   and 

127;    Hanchett   v.    Finch,    47    Cal.  Practice,  vol.  2,  p.  1814,  form  No. 

192;  Edwards  v.  Southern  Pac.  R.  1097. 

I  Code  PI.  and  Pr. — 33  5^3 


§408 


CODE   PLEADING   AND   PRACTICE, 


[Pt.  I, 


answer  or  demurrer  he  must  also  file  a  written  demand 
for  such  a  change  f'  and  the  filing  of  such  written  demand 
for  a  change  of  the  place  of  trial  is  essential  to  the  validity 
of  an  order  by  the  court  in  which  the  action  is  commenced 
transferring  the  trial  of  the  cause  to  the  county  of  the 
residence  of  the  defendant."'  A  notice  of  motion  to  change 
the  place  of  trial  is  not  such  a  demand.'*  In  other  states 
lia\dng  the  reformed  system  of  judicature  similar  pro- 
visions are  found.  Thus,  in  New  York,  to  procure  a 
change  of  the  place  of  trial,  in  case  the  county  named  is 
not  the  proper  county,  a  demand  is  first  necessary,  the 
service  of  which  is  an  essential  prerequisite  to  the  mo- 
tion,^ And  if  the  plaintiff  fails  to  consent  to  the  demand, 
application  must  be  made  to  the  court.^ 

§  408.  Form  and  statement  in  demand^ — In  Cali- 
fornia. Under  the  California  Code  of  Civil  Procedure,^ 
a  demand  for  a  change  of  the  place  of  trial  should  desig- 
nate the  county  to  which  to  be  transferred,  and  should  be 
made  by  the  defendant,  or  one  of  the  co-defendants  for 
and  on  behalf  of  all  the  defendants,^  but  a  written  demand 
for  a  change  in  the  place  of  trial  of  a  cause  is  not  insuf- 
ficient because  the  attorneys  of  the  defendant,  describing 
themselves  as  such,  say  that  they  demand,  instead  of  say- 


i!  See:  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §396;  Consolidated 
Supp.  1906-1913,  p.  1427;  Nicholl 
V.  Nicholl,  66  Cal.  36,  37,  4  Pac. 
882;  Palmer  v.  Barclay,  92  Cal. 
199,  201,  28  Pac.  226. 

3  Byrne  v.  Byrne,  57  Cal.  348; 
Pennie  v.  Visher,  94  Cal.  323,  326, 
29  Pac.  711;  Warner  v.  Warner, 
100  Cal.  11,  17,  34  Pac.  523;  Elam 
V.  Griffin,  19  Nev.  442,  14  Pac.  582. 

4  Byrne  v.  Byrne,  57  Cal.  348. 
See  Anderson  v.  Arpin  Hardwood 
Lumber  Co.,  131  Wis.  41,  110  N.  W. 
792. 

5N.  Y.  Code  Civ.  Proc,  §986; 
Vermont  Cent.  R.  Co.  v.  Northern 


R.  Co.,  1  N.  Y.  Code  Rep.  N.  S. 
401,  6  How.  Pr.  106;  Van  Dyck  v. 
McQuade,   18  Hun    (N.   Y.)    376. 

•iN.  Y.  Code  Civ.  Proc.  §986; 
Marsh  v.  Lowry,  26  Barb.  (N.  Y.) 
197,  16  How.  Pr.  41;  Houck  v. 
Lasher,  17  How.  Pr.  (N.  Y.)  520; 
Clark  V.  Campbell,  54  How.  Pr. 
(N.  Y.)  166. 

1  As  to  form  of  demand,  see 
Jury's  Adjudicated  Forms  of  Plead- 
ing and  Practice,  vol.  2,  p.  1814, 
form  No.  1097. 

2  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  2d  ed.,  §296;  Consolidated 
Supp.  1906-1913,  p.  1427. 

■i  See,  ante,   §  404. 


514 


ch,  XVII,]  STATEMENT    IN   DEMAND,  §  409 

ing  that  the  defendant  demands,  the  change  ;^  because  the 
provisions  of  the  statute  relative  to  the  change  in  the 
place  of  trial,  being  remedial,  are  to  be  liberally  construed, 
and  a  substantial  compliance  therewith  is  all  that  is  re- 
quired f  and  the  written  demand  for  a  change  in  the  place 
of  trial  may  be  signed  by  the  attorney  for  the  defendant 
simultaneously  with  his  appearance  in  the  cause.*^ 

§  409. In  New  York.  In  New  York  the  prac- 
tice is  somewhat  different  from  the  practice  in  California, 
owing  to  the  difference  in  the  statutory  provisions.  In 
that  jurisdiction,  in  the  demand,  the  name  of  the  proper 
county  to  w^hich  a  removal  is  sought  must  be  inserted.^ 
And  service  must  be  made  on  the  opposite  counsel  before 
the  time  for  answering  expires, ^  but  it  may  be  made 
simultaneously  with  the  service  of  the  answer,^  yet  not 
after,  although  defendant  answered  before  his  time  had 
expired,^  Either  party  may  move  when  an  impartial  trial 
could  not  be  had,  or  when  convenience  of  witnesses  w^ould 
be  promoted,^  A  demand  specifying  an  improper  county 
is  irregular.*'  On  a  demand  there  must  be  an  order  or 
consent;  mere  service  of  demand  is  not  sufficient."  In  a 
demand  to  change  the  place  of  trial  to  the  proper  county, 
any  suggestion  as  to  which  is  the  proper  county  is  sur- 
plusage.^   Under  the  New  York  Code  the  demand  must 

4  People  ex  rel.  State  Board  of  3  Mairs  v.  Remsen,  3  N.  Y.  Code 
Harbor  Commrs.  v.  Larue,  66  Cal.      Rep.   138. 

235,  5  Pac.  157;   Buck  v.  Eureka,  4  Milligan    v.    Brophy,    2    N.    Y. 

City  of,  97  Cal.  135,  137,  31  Pac.      code  Rep.  118. 

°'*  •  5  Hinchman  v.  Butler,  7  How.  Pr. 

5  Buck  V.  Eureka,  City  of,  97  Cal.       .j^  y  )  462 
135,  137,  31  Pac.  845. 

6  People  ex  rel.  State  Board  of 
Harbor  Commrs.  v.  Larue,  66  Cal. 
235    5  Pac    157.  ^  Hasbrouck  v.  M'Adam,  3  N.  Y. 

1  Beardsley  v.  Dickerson,  4  How.      Code  Rep.  39,  4  How.  Pr.  342. 

Pr.  (N.  Y.)  81.  8  Philbrick  v.  Boyd,  16  Abb.  Pr, 

2  Milligan    v.    Brophy,    2    N.    Y.       (N.  Y,)    393. 
Code  Rep.  118. 

515 


6  Beardsley  v.  Dickerson,  4  How. 
Pr.    (N.  Y.)    81. 


§  410  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

specify  the  county  where  the  defendant  requires  the  action 
to  be  tried. ^ 

§  410.  Affidavits — 1.  When  ground  nonresidence — 
Defendant's  affidavits.  We  have  already  discussed  tlie 
form  and  sufficiency  of  the  defendant's  affidavit  of  merits 
where  applying  for  a  change  of  the  place  of  trial  on  the 
ground  that  the  action  was  commenced  in  an  improper 
county,^  and  that  an  affidavit  of  merits  is  not  required 
where  the  application  is  upon  any  of  the  other  grounds- 
mentioned  in  the  statute.^  A  defendant  seeking  to  secure 
a  change  in  the  place  of  trial  of  a  cause  on  this  ground,  in 
addition  to  an  affida\dt  of  merits,  must  file  an  affidavit  set- 
ting forth  fully  and  clearly  the  facts  as  to  his  place  of 
residence,^  in  order  that  the  court  may  have  before  it 
some  tangible  evidence  upon  that  subject  when  passing 
upon  the  merits  of  the  motion  for  a  change  of  the  place 
of  trial.  An  affidavit  on  such  a  motion  on  this  ground, 
which  unqualifiedly  states  that  affiant  is  a  resident  of  the 
county  to  which  he  demands  that  the  trial  of  the  cause  be 
changed  or  transferred,  states  a  probative  fact  to  which 
affiant  is  qualified  to  testify.^  While  the  better  practice 
is  to  have  the  affidavit  of  merits  and  the  affidavit  of  resi- 
dence made  by  the  defendant  personally,  it  has  been  held 
that  the  affida\dt  may  be  made  by  the  attorney  of  the 
defendant  applying  for  the  change,  where  the  attorney 
qualifies  himself  to  make  such  affidavit,  and  shows  a  suf- 
ficient reason  for  its  not  being  made  by  the  party  himself.** 

9  N.  Y.  Code  Civ.  Proc,  §986.  Defendant  resident  of  county 

1  See,  ante,  §§  401-404.  nine   months   previous   to  com- 

•-•  See,  ante,  §  405,  footnote  12.  mencement  of  action,  is  not  incon- 

3  See  Kerr's  Cyc.  Cal.  Code  Civ.  sjstent  with  his  u  n  q  u  a  1  i  fi  e  d 
Proc,  2d  ed.,  §397;  Consolidated  ^t^tement  that  at  the  time  of  the 
Supp.   1906-1913,  p.  1429. 

4  For   form   of  affidavit  of   resi- 

dence,   see   Jury's   Adjudicated 

r-  t   Di^^^i..^    ^^A    D^-./.4^:/.o       —O'Brien  v.  O'Brien,  16  Cal.  App. 

Forms    of    Pleading    and    Practice,  '  '^^ 

vol.  2,  p.  1815,  form  No.  1098.  109,  116  Pac.  692. 

r.  O'Brien  v.  O'Brien,  16  Cal.  App.  «  Nicholl  v.  NJcholl,   66  Cal.  36, 

109,  116  Pac.  692.  4    Pac.    882,   distinguishing  Bailey 

516 


commencement  of   the   action    he 
was  a  resident  of  another  county. 


ch.  XVII.]  AFFIDAVITS   ON    CHANGE — PLAJNTIFF's.  §411 

A  common  and  convenient  practice  is  to  combiiio  the 
jiffidavit  of  merits  with  the  affidavit  of  the  ground  on 
which  the  motion  is  made,  where  the  latter  does  not 
appear  upon  the  face  of  the  complaint,  and  has  to  be 
established  by  affidavit.  It  has  been  lield  that  where  it 
appears  from  the  affidavit  of  merits,  that  the  defendant 
is  entitled  to  file  an  answer  which  will  raise  issues  for 
trial  which  he  desires  to  have  tried  in  the  proper  county, 
the  affidavit  is  sufficient.^ 

§  411. Plaintiff's  affidavits.  The  plaintiff's 

willful  or  careless  ignorance  of  the  residence  of  the  de- 
fendant does  not  put  it  in  the  power  of  such  plaintiff  to 
sue  the  defendant  in  any  county  in  the  state  which  he  may 
select,  however  remote  from  the  place  of  residence  of  the 
latter;  for  if  this  were  the  rule  of  practice,  the  effect  of 
such  rule  would  be  practically  to  repeal  the  provision  of 
the  statute  requiring  suit  to  be  brought  in  the  county  of 
the  residence  of  the  defendant,  and  would  put  it  in  the 
power  of  an  unscrupulous  plaintiff,  by  designedly  keeping 
ignorant  of  the  facts,  or  feigning  to  be  ignorant  of  them, 
to  sue  where  he  pleased,  and  thus  fraud  would  be  encour- 
aged and  oppression  practiced.^  Hence,  when  a  defen- 
dant, sued  out  of  the  county  of  his  residence,  applies  for  a 
change  of  the  place  of  trial  to  the  proper  county,  if  the 
plaintiff  resists  the  application,  his  affidavits  must  show 
that  he  used  all  proper  diligence  to  ascertain  the  resi- 
dence of  the  defendant  before  suit  was  commenced,  and 

V.  Taaffe,  29  Cal.  423;  Johnson  v.  deemed  sufficient." — Johnson  v. 
Lynch,   15  How.  Pr.    (N.  Y.)    199.      Lynch,  15  How.  Pr.  (N.  Y.)  199. 

"Affidavit  of  the   attorney  of  a  '  ^^^^^  ^^  ''^^-  ^"^^  ^-  Superior 

Court,  9  Wash.  668,  88  Pac.  206. 

For  form  of  combined  affidavit 
of  merits  and  residence,  see  Jury's 
as  to  residence,  on  personal  know!-  Adjudicated  F  o  r  m  s  of  Pleading 
edge,— "and  shows  an  adequate  and  Practice,  vol.  2,  p.  1815,  form 
excuse  for  its  not  being  made  by      No.  1100. 

the  party;  absence  beyond  seas  or  i  Loehr  v.  Latham,  15  Cal.  418, 

out  of  the   state   will  usually   be      420, 

.   517 


party   will   be   sufficient   where   it 
swears  to  merits," — or  as  to  facts 


§412 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


failed ;-  a  mere  showing  of  ignorance,  without  a  showing 
of  diligence,  will  not  entitle  the  plaintiff  to  a  trial  in  the 
county  where  the  suit  is  brought.^ 

On  conflict  as  to  residence  of  the  defendant,  where 
plaintiff  contends  that  the  defendant  is  a  resident  of  the 
county  where  sued,  the  affidavits  furnished  by  the  plain- 
tiff to  support  his  contention  must  set  forth  probative 
facts  and  not  merely  the  opinions  or  conclusions  of  affi- 
ants, or  mere  conclusions  of  law.* 

Resistance  on  ground  convenience  of  luitnesses  requires 
cause  to  be  tried  in  the  county  in  which  the  action  was 
commenced  can  not  be  indulged ;  and  if  the  court  refuses 
to  grant  the  change  when  asked  for  on  such  ground,  where 
the  motion  is  made  at  the  time  of  defendant's  demurring 
or  appearance,  it  is  ground  for  reversal  on  appeal.^ 


H12. 


Association  or  corporation — In  Cali- 


fornia. The  California  constitution^  provides  that  an 
association  of  persons  or  a  corporation  may  be  sued  (1)  in 
the  county  where  the  contract  was  made  or  was  to  be 
performed,  or  (2)  in  the  county  where  the  obligation  or 
liability  arose  or  the  breach  occurred,  or  (3)  in  the  county 
in  which  the  principal  place  of  business  of  such  associa- 
tion or  corporation  is  situated,  subject  to  the  power  of 
the  court  to  change  the  place  of  trial,  as  in  other  cases. 
Hence,  where  a  suit  against  an  association  or  a  corpora- 
tion is  commenced  in  a  county  other  than  the  county  in 
which  its  office  and  principal  place  of  business  is  situ- 
ated,— e.  g.,  against  a  railroad  corporation  for  a  breach 


2  Id.;  Thurber  v.  Thurber,  113 
Cal.  607,  45  Pac.  852;  Mohler  v. 
Drummer  Boy  Gold  Min.  Co.,  7  Cal. 
App.  190,  193,  93  Pac.  1064. 

3  Thurber  v.  Thurber,  113  Cal. 
607,  45  Pac.  852. 

4  Bernou  v.  Bernou,  15  Cal.  App. 
341,  345,  114  Pac.  1000. 

5  Cook  V.  Pendergast,  61  Cal.  72; 


Bailey  v.  Sloan,  5  Cal.  Unrep.  387, 
4  Pac.  349;  Heald  v.  Hendy,  65  Cal. 
321,  4  Pac.  27;  Yore  v.  Murphy,  10 
Mont.  311,  25  Pac.  1041;  Williams 
V.  Keller,  6  Nev.  141. 

1  Cal.  Const.  1879,  art.  XII,  §  16; 
Henning's  Gen.  Laws,  2d  ed.,  p.  81. 

As  to  domicile  of  corporations, 
see,  ante,  §§  372-380. 


il8 


eh.  XVII.]  CHANGE — BIAS    AND   PREJUDICE.  §§413,414 

of  its  duty  as  a  common  carrier, — such  defendant  associa- 
tion or  corporation  seeking  to  have  the  place  of  trial  of 
the  cause  changed  to  the  county  in  which  its  principal 
office  and  place  of  business  is  situated,  must  show  by  its 
affidavits  (1)  that  the  contract  sued  on  was  not  made  or 
to  be  performed  in  the  county  in  which  the  action  was 
commenced;  or  (2)  that  the  obligation  or  liability  sued 
on,  or  that  the  damage,  default,  injury  or  negligence  com- 
plained of,  did  not  arise  or  occur  in  the  county  in  which 
the  action  was  commenced ;  and  if  they  do  this  they  will 
be  sufficient,-  otherwise  they  will  be  insufficient.^  V 

<§i  413. Plaintiff's    affidavits.      In    an'_ 

application  by  an  association  or  a  corporation  for  a 
change  of  trial  to  the  proper  county,  as  discussed  in  the 
preceding  section,  the  plaintiff's  counter-affidavits  must 
be  equally  full  and  precise  in  stating  facts  which  bring 
the  plaintiff  within  the  provisions  of  the  constitution,  to 
justify  the  bringing  of  the  action  in  the  county  where 
pending  and  warrant  its  retention.  Thus,  on  the  hearing 
of  such  a  motion,  it  will  not  be  sufficient  for  the  plaintiff 
merely  to  read  the  verified  complaint,  sho\ving  that  he  is 
a  resident  of  the  county  in  which  the  action  was  com- 
menced, and  alleging  that  the  breach  of  the  contract  sued 
on  occurred  there,  but  not  setting  forth  where  the  con- 
tract was  made  or  was  to  have  been  performed.^ 

<§  414.    2.  Bias,  partiality  and  prejudice — Moving 

AFFIDAVITS.  Either  party  to  an  action  may  have  the  cause 
removed  to  another  county  for  trial  for  this  cause  or 
ground,  and  the  general  rules  herein  laid  down  as  to  the 

2  See  Byrum  v.  Stockton  Com-  As  to  cause  of  action  for  breach 
bined  Harvester  &  A.  Works,  91  of  contract, — e.  g.,  failure  of  war- 
Cal.  657,  27  Pac.  1093.  ranty,— arising  at  place  in  which 

3  Chase  v.  Southern  Pac.  Coast  contract  is  made,  see:  Bancroft  v. 
R.  Co.,  83  Cal.  468,  23  Pac.  532.  San  Francisco  Tool  Co.,  5  Cal.  Un- 

1  Byrum  v.  Stockton  Combined  rep.  586,  47  Pac.  684;  Byrum  v. 
Harvester  &  A.  Works,  91  Cal.  657,  Stockton  Combined  Harvester  & 
•J.1  Pac.  1093.  A.  Works.  91  Cal.  657,  27  Pac.  1093. 

519 


414 


CODE   PLEADING   AND    PRACTICE. 


[Ft.  I, 


sufficiency  of  the  moving  affidavits  and  the  counter  affi- 
davits apply  with  equal  force  no  matter  by  which  party 
the  application  is  made. 

Where  the  defendant  seeks  to  have  the  trial  of  a  cause 
removed  t<3  another  county  because  of  bias  or  prejudice 
against  him  in  the  county  where  the  action  is  pending,  or 
because  of  partiality  in  favor  of  the  plaintiff  in  that 
county,  preventing  a  fair  and  impartial  trial  of  the  cause, 
it  is  necessary  that  the  affidavits  supporting  his  applica- 
tion for  a  change  in  the  place  of  trial  shall  state  all  the 
facts  and  circumstances  which  induce  the  belief  that  a 
fair  and  impartial  trial  can  not  be  had  in  the  county  in 
which  the  action  is  pending,^  in  order  that  the  court  may 
be  able  to  judge  whether  the  belief  is  well-founded ;  affi- 
davits of  individuals  to  their  belief  that  a  fair  and  impar- 
tial trial  can  not  be  had  are  insufficient.-  Such  an  appli- 
cation should  be  supported  by  the  affidavits  of  persons 


1  Gibbert  v.  Washington  Water 
Power  Co.,  19  Idaho  637,  115  Pac. 
924;  McCormick  Harvesting  Ma- 
chine Co.  V.  Hayes,  7  Kan.  App. 
141,  53  Pac.  70;  Kennon  v.  Gilmer, 
5  Mont.  257,  51  Am.  Rep.  45,  5  Pac. 
847;  Lady  Franklin  Min.  Co.  v. 
Delaney,  4  N.  M.  (Gilders.)  51,  12 
Pac.  628;  Richardson  v.  Augustine, 
5  Okla.  667,  49  Pac.  930. 

As  to  partiality  of  judge  of 
county  where  action  pending,  see, 
post,  §  429. 

2  See:  Sloan  v.  Smith,  3  Cal. 
410;  McCormick  Harvesting  Ma- 
chine Co.  V.  Hayes,  7  Kan.  App. 
141,  53  Pac.  70;  Kennon  v.  Gilmer, 
5  Mont.  257,  51  Am.  Rep.  45,  5  Pac. 
847;  State  v.  Millain,  3  Nev.  409; 
State  v.  Dwyer,  29  Nev.  427,  91 
Pac.  305;  People  v.  Vermilye,  7 
Cow.  (N.Y.)  108;  People  v.Bodine, 
7  Hill  (N.  Y.)  147;  Scott  v.  Gibbs, 
2  Johns.  Cas.  116;  Bowman  v.  Ely, 
2  Wend.  (N.  Y.)  250. 


"Affiant  has  reason  to  believe" 
that  a  fair  trial  can  not  be  had,  is 
insufficient. — Kennon  v.  Gilmer,  5 
Mont.  257,  51  Am.  Rep.  45,  5  Pac. 
847. 

Affidavit  of  defendant's  agent 
that  it  is  his  belief  that  an  im- 
partial trial  can  not  be  had,  in- 
sufficient.— McCormick  Harvesting 
Machine  Co.  v.  Hayes,  7  Kan.  App. 
141,  53  Pac.  70. 

In  action  of  replevin,  where  the 
plaintiffs  own  a  mine  from  which 
the  ore  in  controversy  came,  and 
the  application  is  made  on  the 
ground  that  an  organized  combina- 
tion was  continually  stealing  ore 
from  the  mine,  the  affidavits  ought 
to  be  shown  of  what  persons  this 
combination  was  composed,  and  in 
what  manner  they  were  trying  to 
influence  the  action  of  the  jury. — 
Lady  Franklin  Min.  Co.,  4  N.  M. 
(Gilders.)  51,  12  Pac.  628. 


520 


ch.  XVII.]  BIAS   AND   PREJUDICE — AMOUNT.  §  415 

who  have  been  over  the  county  generally,  or  who  have 
been  through  large  communities  thereof,  and  have  heard 
the  citizens  of  the  county  generally  express  themselves  in 
regard  to  the  subject-matter  of  the  action ;  or  the  affidavits 
should  be  made  by  persons  residing  in  different  portions 
of  the  county  who  are  acquainted  with  the  sentiments  and 
feelings  prevailing  in  their  respective  localities  in  the 
county.^ 

Actual  experiment,  it  has  been  said,  should  be  first  made 
by  attempting  to  impanel  a  jury  in  the  cause,^  or  by  at 
least  one  trial  of  the  cause.^  But  this  view  has  not  been 
sustained,  and  other  circumstances  than  the  actual  trial, 
or  attempted  trial,  of  the  cause,  may  be  sufficient  evidence 
that  a  fair  and  impartial  trial  can  not  be  had  in  the  county 
in  which  the  action  is  pending.^ 

§  415. Amount  of  bias,  partiality  or  preju- 
dice NECESSARY.  lu  general,  the  granting  or  refusing  a 
motion  for  the  change  of  the  place  of  trial  of  a  cause  on 
the  ground  of  bias,  partiality  or  prejudice  is  discretionary 
with  the  trial  court,  subject  to  revision  in  case  of  abuse  of 
discretion,  only.^    The  existence  of  local  bias  and  preju- 

3  Gibbert  v.  Washington  Water  5  Messenger  v.  Holmes,  12  Wend. 
Power  Co.,  19  Idaho  637,  115  Pac.  (N.  Y.)  203;  People  v.  Wright,  3 
924.  See  State  V.  Rooke,  10  Idaho  N.  Y.  Code  Rep.  75,  5  How.  Pr. 
388,  79  Pac.  82.  (N.  Y.)  23. 

As  to  amount  of  bias,  partiality  e  People  v.  Webb,  1  Hill  (N.  Y.) 

or  prejudice  necessary,  see,  post,  179;  People  v.  Long  Island  R.  Co., 

§  415.  16   How.  Pr.    (N.  Y.)    106,  4   Park. 

4  State  V.  Gray,  19  Nev.  215,  8  Cr.  Rep.  602;  Budge  v.  Northani, 
Pac.  457,  holding  that  it  is  proper  20  How.  Pr.  (N.  Y.)   248. 

for  a  trial  judge  to  overrule  a  County  plaintiff  in  action  is  not 

motion  for  the  transfer  of  the  a  sufficient  cause  for  transfer  of 

place  of  trial  of  a  cause,  on  the  place  of  trial. — See  note,   74  Am. 

ground    that    there    exists    in    the  Dec.  244. 

community  where  pending  such  a  i  See:  People  v.  Lee,  5  Cal.  353; 

prejudice  that  the  defendant  can  People  v.  Fisher,  6  Cal.  155;  Wat- 

not  obtain  an  impartial  trial,  until  son  v.  Whitney,  23  Cal.  375,  378; 

it  can  be  shown  by  an  examination  Avila  v.  Meherin,  68  Cal.  478,  479, 

of   a   sufficient  number   of  jurors  9   Pac.   428;    Power  v.   People,   17 

that  a  fair  jury  can  not  be  obtained.  Colo.   178,  28   Pac.   1121;    Hyde  v. 

521 


§415 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


dice  is  of  no  consequence  in  a  case  where  the  cause  is  an 
equitable  one  or  a  cause  triable  by  the  court.  In  case  the 
trial  judge  should  become  infected  with  the  bias  or  preju- 
dice of  the  community,  an  application  for  a  change  of  the 
place  of  trial  should  be  granted,  or  a  judge  from  another 
district  called  in  to  try  the  cause.^  But  in  those  cases  in 
which  the  cause  is  one  which  must  be  tried  to  a  jurj^,  the 
general  bias  and  prejudice,  or  sentiment  of  the  commun- 
ity respecting  the  merits  of  the  cause  may  be  such  an 
obstacle  to  a  fair  and  impartial  trial  and  the  administra- 
tion of  justice  between  the  parties  that  a  change  of  the 
place  of  trial  should  be  ordered.^  In  a  case  of  this  kind, 
where  one  county  is  attached  to  another  for  judicial  pur- 
poses an  application  for  a  change  of  trial  from  the  county 
to  which  such  county  is  attached  for  judicial  purposes  wdll 
be  insufficient  unless  the  affidavits  show  that  the  disquali- 
fying bias  and  prejudice  attaches  to  the  latter  county 
also.'' 

Application  not  granted  on  the  ground  of  bias  and 
prejudice  in  the  community  against  a  corporation  or  a 
turnpike  road  company,  where  a  corporation  or  a  turn- 
pike road  company  is  a  party  to  the  action.^  Neither  is 
it  ground  for  a  change  in  the  place  of  trial  that  the  people 
of  the  county  in  wliich  the  action  is  pending  are  interested 
in  the  question  involved  f  or  because  a  high  party  spirit 
prevails  in  such  county.'^  In  an  action  against  a  sheriff, 
the  influence  of  his  office  in  the  county  in  which  the  action 
is  brought  will  not,  of  itself,  be  sufficient  ground  for  the 
transfer  of  the  trial  to  another  county.^    But  in  a  criminal 


Harkness,  1  Idaho  601.  603;  State 
V.  Billings,  77  Iowa  417,  42  N.  W. 
456;  Davis'  Estate,  In  re,  11  Mont. 
1,  27  Pac.  342;  State  v.  Pomeroy, 
30  Ore.  20,  46  Pac.  798. 

2  People  ex  rel.  Walp.ert  v. 
Rogers,  12  Colo.  278,  20  Pac.  702. 

3  People  V.  Baker,  3  Abb.  Proc. 
(N.  Y.)   42,  3  Park.  Cr.  Rep.  181. 


4  Black    V.    Bent,    20    Colo.    342, 
38  Pac.  387. 

5  New  Windsor  Turnpike  Co.  v. 
Wilson,  3  Cai.  (N.  Y.)  127. 

6  Conley  v.  Chedic,  7  Nev.  336. 

7  Zobieskie   v.    Bander,    1    Cai. 
(N.  Y.)   487. 

8  Baker  v.  Sleight,  2  Cai.  (N.  Y.) 
46. 


522 


Ch.  XVII.]  BIAS,  ETC. COUNTER-AFFJDAVITS.  §416 

cause,  where  it  is  made  to  appear  by  the  affidavits  support- 
ing the  application  for  a  change  of  place  of  trial  that  one 
hundred  citizens  of  the  county  united  in  employing  coun- 
sel to  prosecute  the  defendant,  just  ground  for  granting 
the  application  is  shown,'-*  though  this  absolute  doctrine 
has  been  modified.^^ 

In  Wyomimg,  under  a  statute  providing  that  the  judge 
shall  grant  a  change  of  venue  whenever  either  party  to  a 
civil  action  shall  file  an  affidavit  that  the  opposite  party 
has  an  undue  influence  over  the  citizens  of  the  county,  or 
that  an  odium  attaches  to  the  applicant  or  to  his  cause  of 
defense,  if  an  affidavit  is  filed  setting  up  the  existence  of 
such  prejudicial  fact  in  the  words  of  the  statute  the  court 
has  no  discretion  to  refuse  a  change  of  venue.^^ 

§  416. Counter-affidavits.     The  question  of 

changing  the  place  of  trial  because  of  bias,  partiality  and 
prejudice  in  the  county  in  which  the  action  is  pending  to 
such  an  extent  that  a  fair  and  impartial  trial  can  not  be 
had  in  that  county,  is  an  issuable  fact,  and  counter- 
affidavits  are  admissible  to  enable  the  court  to  judge  of 
the  necessity  of  such  a  change;^  and  the  trial  court  may, 
in  its  discretion,  grant  time  in  which  to  prepare  and  file 

0  People  V.  Lee,  5  Cal.  353;  criti-  ing  long  time  and  has  been  gen- 
cised  as  "decided  without  an  erally  talked  about  and  discussed 
examination  of  the  law  as  it  is  throughout  the  county,  and  that  a 
now  settled,  and  we  should  not  number  of  rich  and  influential 
be  justified  in  applying  it  as  Persons  in  the  county  have  inter- 
authority  in  any  case  falling  short  ^^^^^  themselves  in  procuring  a 
of  it  in  any  degree."-People  v.  conviction,  does  not  sufficiently 
G\  aham,  21  Cal.  265.  ^^°^  ^^^^  ^  ^^'^  and  impartial  trial 


10  People  V.  Graham,  21  Cal.  261, 
265;  Boyle  v.  People,  4  Colo.  176, 
181,  34  Am.  Rep.  76;  State  v.  Mil- 
lain,  3  Nev.  409,  434,  462. 


can  not  be  had  in  the  county,  was 

held  in  State  v.  Lowry,  4  Nev.  166. 

As   to   change  of   place   of  trial 

in   a   criminal    case,   see    Fremont 

Older  V.  Superior  Court,  157  Cal. 

11  Perkins  v.  McDowell,  3  Wyo.      770,    109   P  a  c.   4  7  8,   and   Kerr's 

H)3,  19  Pac.  440.  Whart  Crim.  Proc,  vol.  III.  §  1537. 

Mere  fact  criminal  charge  pend-  1  Hyde  v.  Harkness,  1  Idaho  601. 

523 


§417 


CODE   PLEADING  AND   PRACTICE. 


[Pt.  I, 


such  counter-affida\'its.^  Where  the  counter-affidavits  do 
not  deny  the  existence  of  bias  and  prejudice,  but  do  deny 
that  the  party  can  not  have  a  fair  and  impartial  trial, 
stating  the  reasons  upon  which  such  denial  is  based,  they 
"will  be  sufficient.^ 


^17. 


3,  For  convenience  of  witnesses — Moving 


AFFIDAVITS.  In  an  application  for  a  change  in  the  place  of 
trial  of  a  cause  on  the  gi'ound  of  the  convenience  of  wit- 
nesses, the  affidavit  should  be  made  by  the  moving  party 
himself,  but  it  may  be  made  by  his  attorney  in  the  action, 
where  special  reasons  are  shown  therefor.^  The  support- 
ing affidavits  on  such  a  motion  should  be  addressed  to 
the  place  of  residence  of  the  witnesses  for  whose  conven- 
ience the  change  in  the  place  of  trial  is  sought,  and  not  go 
merely  to  their  physical  comforts;-  must  show  that  the 
witnesses,  and  each  of  them,^  are  necessary*  and  material 
witnesses  to  make  out  the  cause  of  the  moving  party,^ 

McCahill,    22    Cal 


2  Pierson    v 
127. 

3  Hyde  v.  Harkness,  1  Idaho  601, 
604. 

1  See,  ante,  §  410,  footnote  6; 
also  Scott  V.  Gibbs,  2  Johns.  Cas. 
(N.  Y.)  116. 

2  Affidavit  that  witness  troubled 
with  bronchitis,  made  November 
9th,  and  that  it  was  dangerous  for 
him  to  be  in  the  county  in  which 
the  action  was  brought  at  that 
season  of  the  year,  is  immaterial 
on  an  issue  of  the  change  of  the 
place  of  trial  for  the  convenience 
of  witnesses, — though  it  might  be 
material  in  hearing  of  a  motion 
for  a  continuance,  or  on  an  ap- 
plication for  fixing  the  date  of 
trial, — because  the  court  will  not 
take  judicial  notice  that  the 
climate  of  the  county  in  which  the 
action  is  brought  is  at  all  times 
dangerous  to  one  alTected  with 
bronchitis. — Miller  &  Lux  v.  Kern 


County  Land  Co.,  140  Cal.  132,  73 
Pac.  836,  affirming  Miller  v.  Kern 
County  Land  Co.,  7  Cal.  Unrep. 
9,  70  Pac.  183. 

3  "Every  one  of  them"  has  been 
held  to  be  essential.  See  cases 
cited,  post,  footnote  6,  this  sec- 
tion. 

■i  Necessary  as  well  as  material 
must  be  shown  by  the  moving  af- 
fidavits.— Satterlee  v.  Groot,  6 
Cow.  (X.  Y.)  33;  Young  v.  Scott, 
3  Hill  (N.  Y.)  32.  35. 

5  Cook  V.  Pendergast,  61  Cal.  72, 
77;  Grant  v.  Bannister,  14.5  Cal. 
219,  78  Pac.  653;  Ennis-Brown  Co. 
v.  Long,  7  Cal.  App.  313,  316,  94 
Pac.  250. 

"All  the  witnesses  who  are  ma- 
terial witnesses,  except  the  plain- 
tiff, reside  in"  the  county  to  which 
it  is  sought  to  remove  the  trial  of 
the  cause,  held  to  be  insufficient 
as  to  materiality  in  Grant  v.  Ban- 
nister, 145  Cal.  219,  78  Pac.  653. 


i2-l 


Ch.  XVII.]  CONVENIENCE   OF    WITNESSES.  §  -117 

wherein  they  are  essential  and  that  without  their  testi- 
mony the  party  can  not  safely  proceed  to  trial/'  and  must 
state  what  is  expected  to  be  shown  by  them,'^  and  also  the 
particular  facts  each  of  such  witnesses  is  expected  to  tes- 
tify to,^  especially  where  the  application  is  contested.^ 
The  supporting  affidavits  should  also  state  the  name  and 
the  residence  of  each  witness  ;^°  a  mere  statement  that 
they  reside  in  the  county  has  been  said  to  be  insufficient," 
as  the  place  of  trial  will  be  determined  by  the  county  in 
which  the  -witnesses  reside  rather  than  the  distance  they 
must  travel.^-  In  California,  it  is  not  necessary  for  the 
applicant  for  a  change  to  state  in  his  supporting  affidavit 
that  he  expects  to  be  able  to  procure  the  attendance  of 
such  witnesses  at  the  trial. ^^ 

Application  not  made  by  all  of  the  persons  named, 
served  and  appearing  in  the  action,  with  the  applicant 
for  a  change,  the  supporting  affidavit  of  the  moving  party 
must  show  the  reason  why  all  do  not  join  in  such  appli- 
cation.^^ 

Little   reliance  placed   by   court  Grant  v.   Bannister,   145  Cal.   219, 

upon    the    mere    allegation    that  221-2,  78  Pac.  653. 

designated  witnesses  are  material,  9  id.-    Price   v    Fort   Edwards 

unless    it   be    shown    by   the    sup-  Water  Works,  16  How.  Pr.  (N.  Y.) 

porting  affidavits  in  what  respect  ^^^ 
they  are  material.  —  People  v. 
Hayes,  7  How.  Pr.  (N.  Y.)  248. 

fi  Satterlee  v.  G  r  o  o  t,  6  Cow. 
(N.  Y.)  35;  Anonymous,  3  Wend. 
(N.  Y.)  424;  Constantine  v.  Dun- 
ham, 9  Wend.  (N.  Y.)  431;  Onon- 
daga County  Bank  v.   Shepherd, 

19   Wend.    (N.   Y.)    10;    People   v.  "Anonymous,    6    Cow.    (N.   Y.) 

Hayes,  7  How.  Pr.   (N.  Y.)    248.  ^^^'  ^^^^^^  ^-  G"""^'  ^  «»"  (^'^-  Y) 

TEnnis-Brown    Co.    v.    Long,    7  445;  Westbrook  v.  Merritt.  1  How. 

Cal.  App.  313,  94   Pac.  250;    Hills  P''-   ^^-  ^-^   '^^^■ 

V.   La   Due,    5   Colo.   App.    248,   38  ^-  Hull   v.   Hull,   1   Hill    (N.   Y.) 

Pac.   430;    Denver   &   Rio   Grande  671;    People   v.    Wright,    3    N.    Y. 

R.  Co.  V.  Chill,  8  Colo.  App.  158,  Code  Rep.  75,  5  How.  Pr.  23. 

45  Pac.  285.  i3   Reavis  v.  Cowell,  56  Cal.  588. 

s  Price  v.  Fort  Edwards  Water  14  Welling  v.  Sweet,  1  How.  Pr. 

Works,   16   How.   Pr.    (N.   Y.)    51;  (N.   Y.)    156. 

525 


10  See:  Grant  v.  Bannister,  145 
Cal.  219,  221-2,  78  Pac.  653;  Crooks- 
ton  V.  Centennial  Eureka  Min.  Co., 
13  Utah  117,  44  Pac.  714;  Denver 
&  Rio  Grande  R.  Co.  v.  Cahill,  8 
Colo.  App.   158,  45  Pac.  285. 


§  418  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

Wherein  witnesses  are  material  in  the  trial  of  a  cause, 
we  liave  already  seen,^^  must  be  made  to  appear  by  the 
supporting  affidavits,  the  courts  placing  very  little  reli- 
ance upon  mere  allegations  of  materiality.^^  Thus,  where 
a  change  in  the  place  of  trial  of  an  action  for  the  breach 
of  a  contract  was  asked  for  the  convenience  of  witnesses 
on  the  ground  that  the  written  memorandum  of  the  con- 
tract which  was  the  subject-matter  of  the  action  was  in- 
definite and  uncertain  as  to  the  terms  thereof  and  as  to 
the  amount  of  the  consideration,  and  was  subject  to  an 
oral  agreement,  this  was  held  merely  to  state  the  conclu- 
sion of  the  affiant,  and  to  be  insufficient  to  show  that  the 
contract  would  admit  of  oral  proof  by  the  witnesses  for 
whose  convenience  the  change  of  place  of  trial  was 
asked.^'^ 

§  418. Counter- AFFIDAVITS.  In  an  application 

for  the  change  of  the  place  of  trial  for  the  convenience  of 
witnesses,  the  counter-affidavits  are  governed  by  the  same 
rules  as  in  an  application  for  a  change  on  other  grounds, 
the  application  being  issuable.^  Thus,  a  statement  in  a 
counter-affidavit  that  named  ^vitnesses  are  material 
merely  states  the  conclusion  of  the  affiant,  and  is  insuf- 
ficient;- so  also  is  an  allegation,  in  an  action  to  recover 

See,  also,  discussion  and  author-  i  See,    ante,    §§411,    413.      See: 

ities,  ante,  §  400.  Pierson  v.   McCahill,   22   Cal.   127, 

15  See  footnotes  3-9,  this  sec-  131;  Edwards  v.  Southern  P  a  c. 
tion,  and  text  going  therewith.  q^^   43   c^i.   46I;    Hyde   v.   Hark- 

16  People  V.  Hayes,  7  How.  Pr.  ^^^^^  ^  j^^^  g02. 

(N    Y  )    248 

„      .      ■  _,  .  „  In  Oklahoma  the  showing  for  a 

17  Ennis-Brown   Co.   v.   Long,    i 

Cal.  App.  313,  94  Pac.  250.  ^^^^^^  °f  P^^^^  °f  ^"^^  *^  ^^^^  ^" 

Written    memorandum   of   con-  ex   parte   showing,   so   that   other 

tract  should  have  been  set  out,  evidence  can  be  considered  by  the 

so    that  the    court   could   judge  court  in  contradiction  of  the  facts 

whether  the   established   rules  of  and  circumstances  detailed  in  the 

law   ^sould    admit   of   parol    proof  supporting  affidavits.— Richardson 

to   show   that   it  was   the   subject  v^  Augustine,  5  Okla.  667,  49  Pac. 

of  such  an  agreement  as  claimed.  930. 

—Ennis-Brown  Co.  v.  Long,  7  Cal.  2  Carr  v.  Stern,  17  Cal.  App.  397, 

App.  313,  94  Pac.  250.  120  Pac.  35. 

526 


Ch.  XVII.]  CONVENIENCE  OF   WITNESSES.  §§419,420 

damages  for  a  personal  injury,  that  affiant  expects  to  dis- 
prove the  statements  in  supporting  affidavits  of  the  mov- 
ing party  alleging  injury  through  negligence  and  to  be 
able  to  prove  that  the  injury  occurred  through  the  negli- 
gence of  the  injured  party.^  The  counter-affidavits  must 
contain  the  same  specific  facts  and  details  required  in  the 
supporting  affidavits;^  and  in  Utali  it  seems  it  must  be 
further  shown  that  the  plaintiff  opposing  a  change  has  a 
meritorious  cause  of  action,  and  there  should  be  incorpo- 
rated in  his  counter-affidavit  all  the  elements  of  an  affi- 
davit of  merits.^ 

§  419. Application  can  be  made  when.     In 

California,^  Nevada,^  New  York,^  and  perhaps  elsewhere, 
an  application  for  a  change  in  the  place  of  trial  on  the 
ground  of  the  convenience  of  "svitnesses  can  not  be  made 
until  the  answer  is  in  and  the  issues  joined.  Conse- 
quently a  plaintiff  can  not,  before  issue  joined,  use  this 
ground  to  resist  a  motion  to  change  the  venue,  made 
liV  the  defendant,  on  the  ground  of  nonresidence  in  the 
county  in  which  the  action  is  brought.* 

<^  420. Discretion  of  court.    The  granting  or 

refusing  of  a  motion  to  change  the  venue  on  the  ground 
of  convenience  of  ^vitnesses  is  discretionary  with  the  trial 
court,^   and   an   exercise   of   this    discretion   is    subject 

3  Id.  (N.   Y.)    481;    Merrill  v.   Grinnell, 

4  Crookston  v.  Centennial  Eu-  10  How.  Pr.  (N.  Y.)  31,  12  Leg. 
reka  Min.  Co.,  13  Utah  117,  49  Pac,  Obs.  236;  Toll  v.  Cromwell,  12 
714.  How.  Pr.   (N.  Y.)   79;    Hubbard  v. 

5  Id.  National   Protection   Ins.   Co.,    11 
1  Cook   V.   Pendergast,   61   C  a  1.      How.  Pr.   (N.  Y.)    149. 

72;    Thomas    v.    Placerville    Gold  4  See,    ante,    §406,    footnote    4; 

Quartz    Min.   Co.,    65   Cal.    600,    4  also,  Wallace  v.  Owsley,  11  Mont. 

Pac.    641;    Howell    v.    Stetefeldt  219,  27  Pac.  790. 
Furnace  Co.,  69  Cal.  153,  10  Pac.  i  Reavis  v.  Cowell,  56  Cal.  588, 

390.  592;  Avila  v.  Meherin,  64  Cal.  478, 

2Sheckles   v.    Sheckles,   3   Nev.  9  Pac.  428;  Clanton  v.  Ruffner,  78 

404;    Williams    v.    Keller,    6    Nev.  Cal.  268,  20  Pac.  676;    Stockton 

141.  Combined  Harvester  &  A.  Works 

3  Mason  v.  Brown,    6   How.   Pr.  v.    Houser,    103    Cal.   377,   37    Pac. 

527 


§  421  CODE  PLEADING  AND   PRACTICE.  [Pt.  I, 

to  review  only  in  cases  of  abuse;-  tlie  preponderance 
of  evidence  or  witnesses  upon  one  side  or  the  other 
does  not  foreclose  the  court's  discretion  and  compel 
a  transfer  of  the  trial. ^  In  an  action  to  foreclose 
a  mortgage  upon  lands  partly  in  two  counties,  where  the 
affidavits  on  the  part  of  the  defendants  established  clearly 
that  the  convenience  of  witnesses  would  be  promoted  by  a 
change  of  venue  to  the  other  county  in  which  the  suit 
might  properly  have  been  brought,  and  the  record  dis- 
closes no  reason  or  sufficient  showing  to  the  contrary,  an 
order  denying  the  motion  of  the  defendants  for  such 
change  can  not  be  justified  upon  the  ground  that  the 
granting  of  such  orders  is  in  the  discretion  of  the  court, 
and  it  will  be  reversed  upon  appeal.^ 

§  421.    4.  Disqualification  op  judge — Supporting 

AFFIDAVITS.  On  a  motion  for  a  change  in  the  place  of 
trial  of  a  cause  on  account  of  the  bias,  partiality,  or  other 
legal  disqualification  of  the  presiding  judge  preventing  the 
party  from  having  a  fair  and  impartial  trial  in  the  county 
in  which  the  action  is  pending,  the  supporting  affidavits 

179;  Bird  v.  Utica  Gold  Min.  Co.,  rel.  Port  Blankley  Mill  Co.  v. 
2  Cal.  App.  673,  68  Pac.  509.  Superior  Court,    9   Wash.    673,   38 

As   to   discretion    of  court,   see,      pac.  155. 

also,  ante,   §  415.  3  Reavis  v.  Cowell,  56  Cal.  588, 

2  Pierson    v.    McCahill,    22    Cal 


592;  Cook  v.  Pendergast,  61  Cal. 
72,  77,  78;  Armstrong  v.  Superior 
Court,  63  Cal.  410,  411;  Heald  v. 
Hendy,  65  Cal.  321,  322,  4  Pac.  27; 
Clanton  v.  Ruffner,  78  Cal.  268,  20 
Pac.  676;  Pascoe  v.  Baker,  158 
Cal.  234,  110  Pac.  816;  Wong 
Fung  Hing  v.  San  Francisco  Re- 
lief &  Red   Cross  Funds,   15   Cal. 


127;  Reavis  v.  Cowell,  56  Cal.  588, 
592;  Hanchett  v.  Finch,  47  Cal. 
192;  Avila  v.  Meherin,  68  Cal.  478, 
9  Pac.  428;  Clanton  v.  Ruffner,  78 
Cal.  268,  269,  20  Pac.  676;  Stock- 
ton Combined  Harvester  &  A. 
Works  V.  Houser,  103  Cal.  377,  37 
Pac.  179;   Grant  v.  Bannister,  145 

Cal.  219,  221,  78  Pac.  653;  Park  v. 

„'_,,.  r-,0     i-ic      App.  537,  539,  115  Pac.  331. 

Greenwell,   15   Cal.   App.   512,   115         ^^ 

Pac.    254;     Ennis-Brown    Co.    v.  Motion  to  remand  after  change, 

Long,  7  Cal.  App.  316,  94  Pac.  251;  can    not    be    made    on    ground    of 

De  Win  v.  Osbom,  12  Colo.  407,  21  convenience  of  witnesses  until  af- 

Pac.  189;  Michael  v.  Mills,  22  Colo.  ter   issues  joined.— 158   Cal.   234, 

439,   45    Pac.   429;    Denver  &   Rio  HO   Pac.   816. 

Grande   R.    Co.   v.   Cahill,   8    Colo.  4  Thompson   v.    Brandt,   98    Cal, 

App.   164,   45   Pac.   285;    State   ex  155,  156,  32  Pac.  890. 

528 


eh.  XVII.]  DISQUALIFICATIOX    OF    JUDGE.  §  421 

must  set  forth  the  grounds  upon  which  the  charge  of  bias, 
partiality,  or  prejudice  or  other  disqualifying  ground  is 
based ;  it  is  not  sufficient  simply  to  allege  that  affiant  has 
reason  to  believe  and  does  believe  that  he  can  not  have  a 
fair  and  impartial  trial/  or  to  boldly  declare  that  the 
judge  is  prejudiced,-  except  under  constitutional  provis- 
ions^ making  change  of  place  of  trial  mandatory  upon  the 
moving  party  filing  an  affidavit  duly  verified,  charging  the 
presiding  judge  of  the  trial  court  mth  bias  and  preju- 
dice.* But  it  is  not  necessary  or  proper  to  set  out  facts 
in  the  affidavits  that  would  in  themselves,  or  by  the  man- 
ner in  which  they  are  stated,  be  calculated  to  scandalize 
the  judge  or  to  bring  him  into  public  contempt/'  It  has 
been  held  in  California  that  an  affidavit  made  on  applica- 
tion for  a  change  in  the  place  of  trial,  on  the  ground  of 
bias  and  prejudice  on  the  part  of  the  presiding  judge, 
which  states  "that  the  judge,  as  the  affiant  is  informed, 
and  verily  believes,  has  frequently  stated  that  he  believes 
the  affiant  guilty  of  the  crime  charged  in  the  indictment, 
and  has  frequently  expressed  himself  against  and  ad- 
versely to  the  affiant  in  connection  with  said  charge," 
does  not  merit  consideration,  as  it  contains  a  mere  charge 
upon  information  and  belief,  and  does  not  show  how  the 
information  was  obtained,  or  upon  what  the  belief  was 
based."  But  this  was  before  the  amendments  to  the  Code 
of  Civil  Procedure  in  this  regard ;  it  is  thought  that  this 
affidavit  would  sufficiently  state  the  ground  of  opinion 
that  moving  party  could  not  have  a  fair  and  impartial 
trial,  under  present  provisions  of  the  Code.'^ 

1  Bell  V.  Bell,  18  Idaho  636,  111  Idaho  556,  10  Ann.  Cas.  260,  86 
Pac.  1074;  Emporia,  City  of,  v.  Pac.  531;  State  v.  Brown,  24  Okla. 
Volmer,   12  Kan.   627.  433,  103  Pac.  762;  Ellis,  Ex  parte, 

.  Griggs  V.  Carson,  71  Kan.  884.      ^  ^^^^-  ^'-  ^^^'  ^^    »-.  R.  A.  (N.  S.) 

653,  105  Pac.  184. 
81  Pac.  471.  \^     ^ 

r>  Hughes  v.  People,  5  Colo.  436. 
*  As  Oklahoma  constitution,  «  p^^pj^  ^   Williams,  24  Cal.  31. 

Bunn's  Okla.  Const,  §  15.  7  g^g^  p^gj    g  422. 

4  Rea  V.  State,  3  Okla.  Cr.   276,  As  to  sufficiency  of  affidavit  for 

105  Pac.  384.     See  Day  v.  Day,  12      ciiange  of  place  of  trial  on  account 
I  Code  PI.  and  Pr.— 34  529 


§422  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

§  422. In  California.    In  California  the  only 

matters  disqualifying  a  judge  are  those  provided  in  the 
Code  of  Civil  Procedure/  which  include  bias  and  preju- 
dice on  his  part,-  but  without  a  special  statutory  or  con- 
stitutional provision  to  that  effect  bias  and  prejudice  on 
the  part  of  the  presiding  judge  does  not  disqualify  him  to 
try  the  cause.^  However,  bias  or  prejudice  of  the  trial 
judge  is  not  a  ground  for  the  transfer  of  the  trial  to  an- 
other county  under  the  California  code;  the  judge  thus 
disqualified  is  required  forthwith  to  secure  the  services  of 
some  other  judge,  of  the  same  or  some  other  county,  to  pre- 
side at  the  trial  of  the  action  or  proceeding.^  On  motion 
for  change  of  place  of  trial  on  any  of  the  grounds  of  dis- 
qualification of  judge,  the  supporting  affidavits  must  fully 
set  forth  the  facts  as  pointed  out  in  the  following  sections. 
A  judge  who  is  satisfied  that  he  is  disqualified  to  sit  and 
act  in  a  cause,  ought  not  to  wait  until  the  parties  object 
to  him  because  of  such  disqualification,  but  should  refuse 

of    prejudice    of    presiding    judge,  Erroneous   ruling   made   by   the 

see  McCann  v.  People,  88  111.  103.  judge   on   a  previous   trial   is   not 

Irrelevant    and    immaterial    affi-  evidence  of  bias  and  prejudice. — 

davit  setting  forth  bias  and  preju-  People  v.  Williams,  24  Cal.  31,  35. 
dice  in  trial  judge  as  a  contempt 
of  court. — Jones,  In  Matter  of,  103 
Cal    397    37  Pac    385 

1  Kerr's  Cyc'  Cal.  Code  Civ.  590,  8  Pac.  857;  Bulmer  Consol. 
Proc,  2d  ed.,  §  170;  Biennial  Supp.  Min.  Co.  v.  Standard  Consol.  Min. 
1915,  p.  3040;  Jones,  In  Matter  of,  Co.,  83  Cal.  613,  23  Pac.  613;  Bryan 
103  Cal.  397,  37  Pac.  385;  Patter-  v.  State,  41  Fla.  643,  659,  26  So. 
son  V.  Conlan,  123  Cal.  453,  455,  i022;  Davis'  Estate,  In  re,  11 
56  Pac.  105.  Mont.  1,  19,  27  Pac.  342;  Allen  v. 

2  Kerr's  Cyc.  Cal.  Code  Civ.  Rgilly,  15  Nev.  452,  455;  Gaines  v. 
Proc.  2d  ed.,  §170,  par.  4;  Bien-  g^^^^^  33  ^^^  ^^  202,  215,  42 
nial  Supp.  1915,  p.  3040;  Gay  v.  ^  ^^  ^^  state  ex  rel.  Barnard  v. 
Torrence,  145  Cal.  144,  152,  78  Pac.  ^^^^^  ^^  Education,   19  Wash.   8. 

"140 

„.  ..  •   ^-  t   K^  oc        14,  67  Am.  St.  Rep.  706,  40  L.  R.  A. 

Bias  and   prejudice  must  be  es-  ^  i-         > 

tablished    by    facts    and    circum-  317,  d2  Pac.  317. 

stances  clearly  shown  by  affidavits.  4  Kerr's     Cyc.     Cal.     Code    Civ. 

—Emporia,  City  of,  v.  Volmer,  12  Proc,  2d  ed.,  §170,  par.  4;   Bien- 

Kan.  627.  nial  Supp.  1915,  p.  3040. 

530 


3  People  V.  Williams,  24  Cal.  31; 
McDowell  V.  Levy,  2  Cal.  Unrep. 


eh.  XVII.] 


JUDGE   PARTY   OR   INTERESTED. 


§423 


to  hear  the  case,  and  cause  an  entry  to  be  made  in  the 
docket  to  that  effect,  setting  forth  the  reason  of  his  dis- 
qualification.^ 


§423. 


(1)   Party  to  or  interested  in 


ACTION.  A  judge  is  prohibited  from  acting  in  a  cause, — 
i.  e.,  hearing  and  determining  the  same  and  entering  up  a 
judgment, — in  which  he  is  a  party  or  is  interested,  either 
directly  or  indirectly.^    But  it  has  been  held  that  where 


5  Moses  V.  Julian,  45  N.  H.  52, 
84  Am.  Dec.  114. 

1  Tracy  v.  Colby,  55  Cal.  67,  72; 
North  Bloomfleld  Gravel  Min.  Co. 
V.  Keyser,  58  Cal.  315,  322;  Heil- 
bom  V.  Campbell,  3  Cal.  Unrep. 
204,  23  Pac.  122;  Howell  v.  Budd, 
91  Cal.  342,  353,  27  Pac.  747;  Oak- 
land, City  of,  V.  Oakland  Water- 
Front  Co.,  118  Cal.  249,  251-2,  50 
Pac.  268;  Foley  v.  Foley,  120  Cal. 
35,  40,  65  Am.  St.  Rep.  147,  52  Pac. 
123;  Adams  v.  Minor,  121  Cal.  372, 
53  Pac.  813;  Limerick  v.  Murlatt, 
43  Kan.  318,  23  Pac.  567;  Penin- 
sular R.  Co,  V.  Howard,  20  Mich. 
25;  State  ex  rel.  Bullion  &  Ex- 
change Bank  v.  Mack,  26  Nev.  430, 
69  Pac.  862;  Washington  Ins.  Co. 
V.  Price,  1  Hopkin.  Ch.  (N.  Y.)  1; 
First  Nat.  Bank  v.  McGuire,  12 
S.  D.  226,  76  Am.  St.  Rep.  598,  47 
L.  R.  A.  413,  80  N.  W.  1074;  First 
Nat.  Bank  v.  Keenan,  12  S.  D.  241, 
80  N.  W.  1735;  Barnett  v.  Ash- 
more,  5  Wash.  163,  31  Pac.  466; 
Hovey  v.  Elliott,  167  U.  S.  409,  42 
L.  Ed.  215,  17  Sup.  Ct.  Rep.  841. 

Action  to  revive  judgment  where 
judge  seeking  to  enforce  lien  for 
his  fees  on  the  judgment  sought 
to  be  revived,  he  is  disqualified  to 
determine  the  matter  of  revivor. — 
Toole  V.  Berkley,  60  Kan.  446,  56 
Pac.  755. 

Action  to  vacate  judgment  ren- 


dered, judge  presiding  at  trial  at 
which  judgment  rendered  is  not 
disqualified  by  interest  in  the  pro- 
ceedings to  vacate  the  judgment. 
—Chicago,  B.  &  Q.  R.  Co.  v.  Kel- 
logg, 54  Neb.  138,  74  N.  W.  403. 

Foreclosure  of  liens  on  property 
which  judge  had  obtained  and 
transferred,  he  is  disqualified  to 
try  the  action. — Findley  v.  Smith, 
42  W.  Va.  305,  26  S.  E.  370. 

Interest  in  common  with  all  the 
citizen  voters  of  the  county  in 
the  change  of  the  county  seat,  does 
not  disqualify  him  from  sitting  and 
acting  at  hearing  of  injunction 
suit  to  prevent  removal. — Sauls  v. 
Freeman,  24  Fla.  209,  12  Am.  St. 
Rep.  190,  4  So.  525. 

Judge  made  party  to  partition 
proceedings  disqualified  by  inter- 
est to  try  the  cause. — Younger  v. 
Superior  Court,  136  Cal.  682,  69 
Pac.  485. 

— Can  not  arbitrarily  determine 
that  he  has  no  interest,  and  direct 
that  application  for  change  of 
place  of  trial  be  stricken  from 
files. — Id.  See  McClatchy  v.  Su- 
perior Court,  119  Cal.  413,  419,  39 
L.  R.  A.  691,  51  Pac.  696. 

— Question  of  interest  must  be 
tried  upon  affidavits  alone,  with- 
out reference  to  judge's  own 
knowledge. — See  Keating  v.  Keat- 
ing, 169  Cal.  754,  147  Pac.  974. 


631 


§423 


CODE   PLEADING    AND    PRACTICE. 


[Ft.  I, 


thus  interested  he  may  make  an  order  transferring  the 


Membership   of   bar   association 

of  state  does  not  disqualify  him  to 
sit  and  act  in  a  proceeding  brought 
for  the  disbarment  of  an  attorney, 
although  the  association  may  be 
liable  for  costs. — Alabama  Bar  As- 
sociation, Ex  parte,  92  Ala.  113,  12 
L.  R.  A.  134,  8  So.  768. 

Membership  of  vestry  of  church, 
whose  vestrymen  and  wardens 
have  been  incorporated  and  in- 
vested with  the  property  of  the 
church,  including  donations,  gifts 
and  grants,  to  hold  the  same  for 
the  benefit  of  the  church,  with 
power  to  sue  and  use  all  necessary 
means  to  recover  and  defend  any 
and  all  property  belonging  to  the 
church,  disqualifies  a  judge  to  sit 
and  act  in  the  probate  of  a  will  in 
which  the  vestrymen  and  wardens 
are  beneficiaries.  —  State  ex  rel. 
Colcord  V.  Young,  31  Fla.  594,  34 
Am.  St.  Rep.  41,  19  L.  R.  A.  636, 
12  So.  673. 

Ownership  of  stock  in  bank  in- 
tervening in  proceedings  pending 
before  him  in  which  the  validity 
of  bonds  held  by  the  bank  is  in 
question,  disqualifies  the  judge  to 
preside  at  the  proceedings. — 
Adams  v.  Minor,  121  Cal.  372,  53 
Pac.  813. 

Ownership  of  stock  in  corpora- 
tion presenting  claims  against  es- 
tate of  decedent,  disqualified  from 
passing  on  such  claim. — State  ex 
rel.  Bullion  &  Exchange  Bank  v. 
Mack,  26  Nev.  430,  69  Pac.  862. 

But  former  ownership  of  stock 
which  has  been  disposed  of,  does 
not  disqualify. — Scadden  Flat  Gold 
Min.  Co.  V.  Scadden,  121  Cal.  33, 
53  Pac.  440. 

Partnership  in  poi;tical  party 
and  activity  in  supporting  contes- 


tant, does  not  disqualify  a  judge 
to  sit  and  act  in  an  election  con- 
test.—  Fulton  V.  Longshore,  156 
Ala.  614,  19  L.  R.  A.  (X.  S.)  002, 
46  So.  989. 

Otherwise  where  judge's  own 
election  at  the  same  general  elec- 
tion is  contested. — Medlin  v.  Tay- 
lor, 101  Ala.  242,  13  So.  310. 

Probate  judge  interested  in  es- 
tate through  power  of  attorney 
from  persons  claiming  as  heirs  of 
the  estate  to  receive  their  money 
or  property  for  them,  or  other- 
wise, is  disqualified  thereby  to  act 
in  any  proceeding  touching  the  ad- 
ministration of  the  estate. — White, 
Estate  of,  37  Cal.  190,  192;  Oakley 
V.  Aspinwall,  3  N.  Y.  547. 

— Creditor  of  estate  does  not  dis- 
qualify.— Regents  of  University  of 
California  v.  Turner,  159  Cal.  451, 
114  Pac.  842. 

Signature  to  petition  by  jud.5e 
for  removal  of  county  seat  does 
not  disqualify  him  from  presiding 
at  the  hearing  and  determining  a 
mandamus  suit  to  compel  the 
proper  officers  to  call  an  election 
thereunder. — Sauls  v.  Freeman,  24 
Fla.  209,  12  Am.  St.  Rep.  190,  4  So. 
525. 

Wife  of  Judge  stockholder  in  cor- 
poration party  to  action, — although 
there  are  no  statutory  provisions 
on  the  subject,  and  the  husband 
is  not  directly  interested  in  the 
property  of  his  wife  during  her 
life  time,  and  she  may  encumber 
or  dispose  of  it  without  his  con- 
sent,— disqualifies  the  judge  to  sit 
or  act  in  the  action. — First  Nat. 
Bank  v.  McGuire.  12  S.  D.  226,  76 
Am.  St.  Rep.  598,  47  L.  R.  A.  413, 
SO  N.  W.  1074;  First  Nat.  Bank  v. 
Keenan,    12    S.   D.    241,   80    N.    W. 


532 


4 


eh.  XV 11.  J 


JUDGE   PARTY   OR   INTERESTED. 


§42;j 


trial  of  the  cause  to  another  county,^  draw  a  jury  panel 
for  the  term  of  court  at  which  will  come  on  for  trial  and 
determination  a  cause  in  which  he  is  disqualified  to  sit 
l)ecause  of  his  interest  in  the  cause  ;^  issue  an  order  to 
show  cause  in  an  application  by  a  corporation,  in  whicli 
he  is  a  stockholder,  for  permission  to  change  its  name,^ 
but  he  can  not  issue  an  order  directing  the  publication  of 
the  petition  in  such  a  cause  f  hear  and  determine  pro- 
ceeding on  affidavits  charging  contemptuous  conduct 
toward  the  court,"  and  the  like.  But  a  judgment  of  any 
kind  by  a  judge  disqualified,  by  reason  of  interest  in  the 
cause,  is  void,"  and  the  consent  of  the  parties  to  his  acting 
in  the  hearing  and  determination  thereof  can  not  srive  it 


1735;  First  Nat.  Bank  v.  McCarthy, 
13  S.  D.  365,  83  N.  W.  423. 

2  People  V.  McGarvey,  55  Cal. 
327,  328;  Livermore  v.  Brundage, 
64  Cal.  299,  30  Pac.  848;  Kern 
Valley  Water  Co.  v.  McCord,  70 
Cal.  646,  11  Pac.  798. 

3  People  V.  Ah  Lee  Doon,  97  Cal. 
171,  173,  31  Pac.  933. 

4  Los  Angeles  Trust  Co.,  In  re, 
158  Cal.  603,  112  Pac.  56. 

5  Los  Angeles  Trust  Co.,  In  re, 
158  Cal.  603,  607,  112  Pac.  56.  citing 
Johnson  v.  German  Ins.  Co.,  150 
Cal.  336,  88  Pac.  985. 

«  Hughes  V.  Moncur,  28  Cal.  App. 
462,  152  Pac.  968. 

7  ALA.  —  Clouch  V.  Castelberry, 
23  Ala.  85;  Heydenfeldt  v.  Towns, 
27  Ala.  423.  CAL.— People  ex  rel. 
Carrillo  v.  De  la  Guerra,  24  Cal. 
73;  White,  Estate  of,  37  Cal.  190. 
IND. — Fecheimer  v.  Washington, 
77  Ind.  366.  MD. — Buckingham  v. 
Davis,  9  Md.  324.  MASS.— Cottle, 
Appellant,  22  Mass.  (5  Pick.)  483; 
Coffin  V.  Cottle,  26  Mass.  (9  Pick.) 
287;  Sigonrney  v.  Sibley,  38  Mass. 
(21  Pick.)  101,  32  Am.  Dec.  428; 
Gay  V.  Minot,  57  Mass.   (3  Cush.) 


352;  Bacon,  Appellant,  73  Mass.  (7 
Gray)  791;  Hall  v.  Thayer,  105 
Mass.  219,  7  Am.  Rep.  513.  NEV.— 
Frevert  v.  Swift,  19  Nev.  363.  11 
Pac.  273.  N.  H.— Stearns  v.  Wright, 
51  N.  H.  608;  Bedell  v.  Bailey,  58 
N.  H.  62;  Fowler  v.  Brooks,  64 
N.  H.  423,  10  Am.  St.  Rep.  425,  13 
Atl.  417.  N.  Y.— Oakley  v.  Aspin- 
wall,  3  N.  Y.  547;  Wigand  v.  De- 
jonge,  8  Abb.  N.  C.  260;  Schoon- 
maker  v.  Clearwater,  41  Barb. 
200;  affirmed  in  Chambers  v.  Clear- 
water, 40  N.  Y.  (1  Keyes)  310; 
Foot  V.  Morgan,  1  Hill  654; 
People  V.  Tweed,  50  How.  Pr.  434; 
Darling  v.  Pierce,  15  Hun  452; 
Hancock,  Matter  of,  27  Hun  78; 
judgment  reversed,  91  N.  Y.  284; 
Edwards  v.  Russell,  21  Wend.  63. 
TENN.  —  Reams  v.  K  e  a  r  n  s.  45 
Tenn.  (5  Coldw.)  217;  Price  v. 
Bowers,  67  Tenn.  (8  Baxt.)  353. 
TEX.— Garnett  v.  Gaines,  6  Tex. 
435;  Chambers  v.  Hodges,  23  Tex. 
104;  Newcomb  v.  Light,  58  Tex. 
141,  44  Am.  Rep.  604;  Abrams  v. 
State,  31  Tex.  Cr.  App.  449,  452, 
20  S.  W.  987. 

See,  also,  note  32  Am.  Dec.  428. 


533 


§424 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


validity,  because  consent  can  not  confer  jurisdiction  where 
statute  expressly  declares  disqualification.^ 

Similar  statutes  to  the  California  statute  regarding  the 
disqualification  of  judges  to  try  and  determine  causes  of 
action  pending  in  their  courts  are  found  in  all  the  juris- 
dictions ;  and  it  is  universally  held  that  they  should  re- 
ceive a  broad  and  liberal  interpretation  rather  than  one 
that  is  technical  or  strict.^ 


H24. 


What  interest  disqualifies. 


The  interest  disqualifying  a  judge  from  hearing  and 
determining  a  cause  must  be  made  to  clearly  appear,^  and 
must  be  shown  by  the  supporting  affidavits  to  be  a  direct, 


8  See  People  ex  rel.  Carrillo  v. 
De  la  Guerra,  24  Cal.  73;  Segour- 
ney  v.  Sibley,  38  Mass.  (21  Pick.) 
101,  32  Am.  Dec.  248;  Richardson 
V.  Welcome,  62  Mass.  (8  Cush.) 
331;  Peninsular  R.  Co.  v.  Howard, 
20  Mich.  25;  Oakley  v.  Aspinwall, 
3  N.  Y.  547;  Low  v.  Rice,  8  Johns. 
(N.  Y.)  409;  Clayton  v.  Per  Dun, 
13  Johns.  (N.  Y.)  218;  Convers  v. 
McArthur,  17  Barb.  (N.  Y.)  410; 
Schoonmaker  v.  Clearwater,  41 
Barb.  (N.  Y.)  200;  affirmed  in 
Chambers  v.  Clearwater,  40  N.  Y. 
(1  Keyes)  310;  Hancock,  Matter 
of,  27  Hun  (N.  Y.)  82;  Abrams  v. 
State,  41  Tex.  Cr.  App.  449,  20 
S.  W.  987. 

Voidable  only  and  not  void,  is 
the  doctrine  of  some  of  the  cases. 
— See  Moses  v.  Julian,  45  N.  H.  52, 
84  Am.  Dec.  114;  Stearns  v. 
Wright,  51  N.  H.  600;  Crowell  v. 
Londonderry,  63  N.  H.  49;  Fowler 
V.  Brooks,  64  N.  H.  423,  10  Am. 
St,  Rep.  425,  13  Atl.  417;  Dimes  v. 
Grand  Junction  Canal  Co.,  3  H.  L. 
Cas.  759,  785,  790,  10  Eng.  Repr. 
301,  312,  314;  Philips  v.  Eyre,  L.  R. 
6  Q.  B.  1,  22. 


— "As  a  rule,  the  judgment  of  an 
interested  judge  is  voidable,  and 
liable  to  be  set  aside  by  petition, 
error,  or  appeal,  as  the  case  may 
be;  but  it  is  not  absolutely  void, 
and  persons  acting  under  the  au- 
thority of  such  a  judgment,  before 
it  is  set  aside  by  competent  au- 
thority, would  not  be  liable  to  be 
treated  as  a  trespasser." — Philips 
V.  Eyre,  L.  R.  6  Q.  B.  1,  22. 

— Doctrine  applicable  only  at 
common  law  and  in  jurisdictions 
following  the  common  law,  not 
under  statutory  prohibition  and  in 
jurisdictions  with  the  reformed 
procedural  judicature. 

Disqualification  existing  by  pub- 
lic policy  and  not  by  statute,  the 
privilege  is  a  personal  one  which 
may  be  waived  by  a  party. — State 
v.  Ham,  24  S.  D.  640,  Ann.  Cas. 
1912A,  1070,  124  N.  W.  955. 

9  North  Bloomfield  Gravel  Min. 
Co.  v.  Keyser,  58  Cal.  315;  Stock- 
well  v.  White  Lake  Tp.  Board,  22 
Mich.  350. 

1  Heinlin  v.  Heilbom,  97  Cal. 
101.  117,  31  Pac.  838. 

See,  also,  authorities  footnote  8, 
this  section. 


534 


ell.  XVII.]  INTEREST    OF   JUDGE   DISQUALIFYING. 


§424 


proximate,  substantial  and  certain  interest  in  the  action 
or  the  result  thereof,  and  not  merely  an  indirect,  remote, 
contingent,  uncertain  and  shado\\y  interest.-  Thus,  an 
interest  as  a  taxpayer  in  the  result  of  a  cause  in  which  it 
is  sought  to  collect  a  money  demand,  the  judgment  in 
which  cause  will  be  contingent  upon  there  having  been 
money  in  the  treasury  applicable  to  the  payment  tliereof 
at  the  time  when  the  claim  accrued,  does  not  constitute  a 
disqualifying  interest  in  the  cause  ;2  neither  does  the  fact 
that  the  judge,  as  a  taxpayer,  has  an  interest  in  revenue 
to  be  derived  from  the  defendants  as  a  result  of  the  judg- 


2Heinlin  v.  Heilborn,  97  Cal. 
101,  31  Pac.  838;  Lassen  Irr.  Co.  v. 
Superior  Court,  151  Cal.  360,  90 
Pac.  709. 

Additional  compensation  for  hold- 
ing court  in  a  county  attached  to 
another  for  judicial  purposes,  does 
not  give  the  judge  a  disqualifying 
pecuniary  interest. — White  v.  Hin- 
ton,  3  Wyo.  753,  17  L.  R.  A.  66,  30 
Pac.  953. 

In  Florida  the  interest  disquali- 
fying a  judge  is  a  property  interest 
in  the  action  or  its  result,  as  con- 
tradistinguished from  an  interest 
of  feeling,  or  sympathy,  or  bias 
that  would  disqualify  a  juror. — See 
Ochus  V.  Sheldon,  12  Fla.  138; 
Sauls  V.  Freeman,  24  Fla.  209,  12 
Am.  St.  Rep.  190,  4  So.  525;  Har- 
ris, Ex  parte,  26  Fla.  77,  23  Am. 
St.  Rep.  548,  6  L.  R.  A.  713,  7  So.  1. 

In  Ohio,  it  is  a  pecuniary  inter- 
est of  the  judge  in  the  event  or 
result  of  the  trial  which  requires 
the  removal  of  a  cause. — State  v. 
Winget,  37  Ohio  St.  153.  To  same 
effect,  Lassen  Irr.  Co.  v.  Superior 
Court,  supra. 

Mayor  of  city  ex  officio  judge, 
not  disqualified  from  presiding  at 
trial  of  a  prosecution  ci^iT-o-^nc; 
liquor-license  violation,  by  the  fact 


that  any  fines  imposed  are  paid 
into  the  salary  fund. — Guerrero,  Ex 
parte,  69  Cal.  88,  10  Pac.  2G1. 

Ownership  of  paramount  water, 
right  by  judge  will  not  disqualify 
him  in  an  action  between  a  water 
company,  holding  a  subservient 
right,  and  its  customers  claiming 
damages  for  failure  to  supply 
water  under  contract. — Lassen  Irr. 
Co.  v.  Superior  Court,  151  Cal.  360, 
90  Pac.  709. 

Purchase  of  land  at  foreclosure 
sale  disqualifies  judge  to  grant 
leave  to  oflScer  serving  process  to 
amend  a  defective  return  in  the 
case. — Morrissey  v.  Gray,  160  Cal. 
390,  117  Pac.  438. 

Unsuccessful  bid  by  trial  judge 
for  the  lease  of  a  mining  claim 
does  not  disqualify  him,  because  of 
interest,  from  hearing  and  deter- 
mining the  validity  of  lease  to 
the  successful  bidder. — Patrick  v. 
Crowe,  15  Colo.  543.  25  Pac.  985. 

3  Higgins  V.  San  Diego,  City  of, 
126  Cal.  303,  308,  58  Pac.  TDO.  .'9 
Pac.  209;  Los  Angeles,  City  of.  v. 
Pomeroy,  133  Cal.  r)32,  6.:.  P  a  c. 
1019. 

Contingency  of  increase  of  taxes 
in  future  as  result  of  decision,  too 
remote  and  indistinct  to  disqualify 


53: 


§424 


CODE  PLEADING  AND  PRACTICE, 


[Ft.  T, 


ment  in  the  action-/  or  the  fact  that  an  action  by  the 
judge  is  pending  against  the  moving  party,  where  the 
action  is  in  no  way  connected  with  the  cause  on  trial,  and 
the  judgment  in  the  one  cause  will  in  no  way  affect  the 
judgment  in  the  other  cause  f  or  the  fact  that  the  judge 
has  purchased  lands  in  the  vicinity  of  the  boundary  line 
which  is  the  subject-matter  of  the  action,  situated  several 
miles  away  from  the  lands  involved  in  the  action  on  trial, 
when  it  is  not  shown  by  the  supporting  affidavits  that  the 
title  to  the  judge's  lands  depends  either  upon  the  evidence 
or  the  law  involved  in  determining  the  rights  of  the  liti- 
gants in  the  pending  action.^ 

Judge  disqualified,  because  of  his  interest,  where  a 
bank,  in  which  he  is  a  stockholder,  OAvns  bonds  of  an  issue 
the  establishment  of  the  validity  of  which  is  the  object  of 
the  suit;^  or  being  a  taxpayer,  in  an  action  to  enjoin  the 


a  judge  who  is  a  tax-payer. — Los 
Angeles,  City  of,  v.  Pomeroy,  133 
Cal.  532,  65  Pac.   1049. 

Lunacy  inquest  pending,  judge 
who  has  purchased  property  from 
the  alleged  lunatic  is  not  disqual- 
ified by  interest  from  holding  the 
inquest. — State  ex  rel.  Smith  v, 
Pitts,  139  Ala.  15G,  36  So.  20. 

Tax-paying  judge  not  for  that 
reason  "personally  interested"  to 
a  disqualifying  degree  in  an  action 
in  which  the  county  is  a  party. — 
Brittain  v.  Monroe  County,  214  Pa. 
St.  651,  6  Ann.  Cas.  617,  63  Atl. 
1076. 

Validity  of  city  charter  amend- 
ment authorizing  bond  issue  and 
levy  of  tax  to  pay  the  debt,  being 
in  issue,  judge  a  property-owner 
and  tax-payer  in  the  city  not  dis- 
qualified to  hear  and  determine 
the  case.— Oak  Cliff,  City  of,  v. 
State  ex  rel.  Gill,  97  Tex.  391,  393, 
79  S.  W.  1068. 


4  Oakland,  City  of,  v.  Oakland 
Water-Front  Co.,  118  Cal.  249,  251, 
50  Pac.  268.  See:  Guerrero,  Ex 
parte,  69  Cal.  88,  10  Pac.  261; 
State  ex  rel.  Schaw  v.  Noyes,  25 
Nev.  31,  56  Pac.  946. 

sSouthern  California  Motor 
Road  Co.  V.  San  Bernardino  Nat. 
Bank,  100  Cal.  316,  320,  34  Pac. 
711 ;  Southern  California  Motor 
Road  Co.  V.  Merrill  (Cal.),  34  Pac. 
712. 

6  Heinlin  v.  Heilborn,  97  Cal. 
101,  117,  31  Pac.  838;  Lambertson 
V.  Superior  Court,  151  Cal.  461, 
91  Pac.  100. 

7  Adams  v.  Minor,  121  Cal.  372, 
53  Pac.  815. 

Extension  of  time  within  which 
any  act  is  to  be  done  in  the  cause 
is  within  the  prohibition  and  not 
within  the  exceptions  respecting 
disqualified  judge  by  reason  of  in- 
terest.—Johnson  V.  German  Amer- 
ican Ins.  Co.,  150  Cal.  339,  88  Pac. 
985.  '   ■ 


536 


eh.  XVII.]  RELATIONSHIP    OF    JUDGE.  §  425 

issuing  of  bonds, ^  or  in  a  suit  to  declare  an  election  estab- 
lishing a  school  district  illegal  and  restrain  assessment 
and  collection  of  taxes,^  or  a  suit  to  enjoin  city  from  con- 
structing water-works  to  be  paid  for  in  municipal  bonds  ;^^ 
or  in  an  action  for  an  injunction,  where  the  property  of 
the  judge  was  equally  subject  to  injury  by  the  acts  sought 
to  be  enjoined  as  the  property  of  the  plaintiff,  and  where 
the  injunction  sought  would  equally  protect  his  property, 
the  judge  is  disqualified  from  acting,  and  a  writ  of  pro- 
hibition mil  lie  to  restrain  him  from  proceeding  in  the 
action,  although  the  court  over  which  he  presides  has 
jurisdiction  of  the  cause. ^^ 

(^  425. (2)  Relationship  by  affinity  or 

CONSANGUINITY.  The  commou  law  was  ever  watchful  over 
the  purity  of  trials,  and  to  secure  the  fair  administration 
of  justice,  guarded  against  the  influences  of  those  pas- 
sions most  likely  to  pervert  the  judgment  of  men, — 
whether  as  judges  or  as  jurors, — in  deciding  upon  the 
conduct  and  controversies  of  their  fellow  men.^  By  the 
common  law  a  judge  related  to  the  parties,  either  by 
affinity-  or  consanguinity,  or  so  related  to  any  person  a 
party  to  an  action,  which  was  pending  in  a  court  over 
which  he  presided,  was  disqualified  to  sit  and  act  in  the 
cause.^  Affinity  is  an  artificial  relationship  arising  from 
marriage,''  and  the  affinity  that  disqualifies  a  judge  con- 

Wife  a  stockholder  disqualifies.  2  Moses  v.  Julian,   45  N.  H.   52, 

—See,  ante,  §  423,  footnote  1.  84  Am.  Dec.  114. 

8  Meyer  v.   San   Diego,   City  of,  :;  See:   Bean  v.  Quimby,  5  N.  H. 

121  Cal.  102,  104.  66  Am.  St.  Rep.  g^.    ^^^^   ,,     g^^j^j^     9    ^J     h.    63; 

22,  41  L.  R.  A.  762,  53  Pac.  434.  ^^^^^^   ^    j^^^.^^     ^5    ^.     ^     5,^   g^ 

0  State  ex  rel.  Hart  v.  Call,  41  ^^^^.,^^  ^    ^^,.^^,^^^ 

Fla.   445,  79   Am.   St.   Rep.  189,   26  '  ^      „         .  ,- 

",,„,;  64  N.  H.  423,  10  Am.  St.  Rep.  42o, 
So.   1014.  ,,  „ 

10  State  ex  rel.  Schaw  v.  Noyes,  13   Atl.   417j^  Sanborn   v.    Fellows, 

25  Nev.  49,  56  Pac.  946.  22  N.  H.  473. 

u  North  Bloomfield  Gravel  Min.  i  Kelly  v.  Neely,  12  Ark.  657,  5G 

Co.  V.  Keyser,  58  Cal.  315.  Am.  Dec.  288:  Tegarden  v.  Philliro, 

1  Jaques  v.  Com.,  10  Gratt.  (Va.)  14  Ind.  App.  27,  32,  42  N.  E.  549. 
G:)0. 

537 


I 


M25 


CODE   PLEADING    AND    PRACTICE. 


[Pt.  I, 


sists  in  the  relationship  of  the  husband  to  the  mfe's  con- 
sangninei,  and  vice  versa  f  but  it  does  not  exist  between 
the  blood  relations  of  either  spouse  and  the  blood  rela- 
tions of  the  other  spouse.^  There  are  statutes  in  all  the 
jurisdictions  which  disqualify  a  presiding  judge  from 
hearing  and  determining  causes  when  they  are  related  to 
either  of  the  parties  within  a  specified  degree.  The  Cali- 
fornia statute^  may  be  taken  as  an  example  in  this  regard 
This  statute  provides  that  no  judge  shall  sit  or  act  as  such 


5  Harris,  Ex  parte,  26  Fla.  77,  23 
Am.  St.  Rep.  548.  6  L.  R.  A.  713, 
7  So.  1. 

6  ALA.— Kirby  v.  State,  89  Ala. 
63,  8  So.  110.  ARK.— Kelly  v.  Neely, 
12  Ark.  657,  56  Am.  Dec.  288.  FLA. 
—Harris,  Ex  parte,  26  Fla.  77,  23 
Am.  St.   Rep.   548,  6   L.  R.  A.  713, 
7  So.  1;    State  ex  rel.  Perez  v. 
Wall,  41  Fla.  463,  79  Am.  St.  Rep. 
195,  49   L.   R.  A.  548,  26   So.  1020. 
Ga!— Blalock   V.   Waldrup,   84   Ga. 
145,  20  Am.  St.  Rep.  350,  10  S.  E. 
622      IND.—  Tegarden  v.  Phillips, 
14  Ind.  App.  27,  33,  42  N.  E.   549. 
ME_Spear  v.   Robinson,   29    Me. 
531.     N.  Y. — Carman  v.  Newell,  1 
Den.  25;  Paddock  v.  Wells,  2  Barb. 
Ch.   331;    Sollinger  v.  E  a  r  1  e,  45 
N   Y    Super.  Rep.  (13  Jones  &  S.) 
80-    affirmed   in  82   N.  Y.   393,   60 
How.    Pr.    116.      OHIO— Chinn    v. 
State,  47  Ohio  St.  575,  11  L.  R.  A. 
630,  26  N.  E.  986.    TENN.— Water- 
house  V.  Martin,  7  Tenn.    (Pick.) 
374;    Hume  v.   Commercial   Bank, 
78  Tenn.  (10  Lea)  1,  34  Am.  Rep. 
290. 

"Affinity,  as  distinguished  from 
consanguinity,  signifies  the  rela- 
tion which  each  party  to  a  mar- 
riage, the  husband  and  the  wife, 
bears  to  the  kindred  or  blood  re- 
lations   of    the    other.      The    mar- 


riage having  made  them  one 
person,  the  blood  relations  of  each 
are  held  as  related  by  affinity  in 
the  same  degree  to  the  one  spouse 
as  by  consanguinity  to  the  other, 
but  the  relationship  by  affinity 
does  not  extend  further,  and  hence 
the  maxim  affinis  mei  affinis  non 
est  mihi  affinis— a  person  related 
by  affinity  to  one  who  is  related  to 
me  by  affinity  is  not  related  to  me 
by  affinity."— Cooper,  J.,  in  Hume 
V.  Commercial  Bank,  78  Tenn.  (10 
Lea)  1,  43  Am.  Rep.  290. 

"If  we  undertake  to  apply  the 
rule  of  affinity  to  the  relation  of 
husband  and  wife,  we  can  not  ex- 
clude the  husband  from  sitting  in 
a  case  in  which  his  wife  has  the 
right  to  sue  alone  and  is  an  in- 
terested party,  as  they  are  not 
related  to  each  other  by  affinity 
or  consanguinity, — a  n  d  no  one 
would  ever  suppose  that  this  was 
permissible."— Mabry  in  State  ex 
rel.  Perez  v.  Wall,  41  Fla.  463,  79 
Am.  St.  Rep.  195,  49  L.  R.  A.  548, 
26  So.  1020. 

If  not  excluded  on  the  ground 
of  relationship,  the  judge  is  surely 
excluded  on  the  ground  of  interest. 
—See,  ante,  §  423,  footnote  1. 

7  Kerr's  Cyc.  Cal.  Code  C  i  v. 
Proc,  2d  ed.,  §  170,  par.  2;  Bien- 
nial Supp.  1915,  p.  3040. 


538 


rh.  XVII.] 


RELATIOXSHIP   OF    JUDGE. 


§425 


in  any  action  or  proceeding  when  he  is  related  to  either 
party,^  or  to  an  officer  of  a  corporation  which  is  a  party,*^ 
or  to  an  attorney,^®  counsel,  or  agent  of  either  party,  by 


**  Creditor  in  insolvency  proceed- 
ing related  to  judge  before  whom 
hearing  is  to  be  held  does  not  dis- 
qualify him  to  preside  at  the  hear- 
ing.— Chinette  v.  Conklin,  10.5  Cal. 
465,  38  Pac.  1107. 

Otherwise  if  he  has  filed  a  claim. 
— See,  post,  §  426,  footnote  3. 

Part  ownership  by  brother  of  a 
mining  claim  does  not  disqualify 
trial  judge  from  hearing  and  de- 
termining an  action  involving  the 
validity  of  a  lease  of  the  mine, 
where  there  is  nothing  to  show 
that  the  brother's  interest  was 
covered  by  the  lease. — Patrick  v. 
Crowe,  15  Colo.  543,  25  Pac.  985. 

9  Cousin-german  of  stockholder 
of  corporation  a  party  wife  of 
judge,  does  not  disqualify  latter. — 
Robinson  v.  Southern  Pac.  Co.,  105 
Cal.  526,  28  L.  R.  A.  773,  3  Pac. 
94,  722. 

Director  of  corporation  is  an  of- 
ficer thereof  within  the  meaning 
of  the  statute. — Lynip  v.  Alturas 
School  District,  29  Cal.  App.  158, 
155  Pac.  109. 

— Bank  in  which  brother  a  direc- 
tor being  the  real  party  in  interest, 
though  action  brought  in  name  of 
a  private  individual,  disqualifies 
presiding  judge. — Id. 

Order  to  show  cause  on  applica- 
tion for  permission  to  change 
name  of  corporation  is  not  within 
the  prohibition,  because  in  mak- 
ing such  order  no  discretion  is 
exercised  and  is  ministerial  rather 
than  judicial. — Los  Angeles  Trust 
Co.,  In  re,  158  Cal.  603,  112  Pac.  56. 

— Order  for  publication  of  peti- 
tion  is  otherwise. — Id.,   citing 


Johnson  v.  German  American  Ins. 
Co.,  150  Cal.  33,  88  Pac.  985. 

Relationship  to  stockholder  of 
corporation  party  to  the  action, 
does  not  disqualify  judge  to  cause. 
— Robinson  v.  Southern  Pac.  Co., 
105  Cal.  526,  28  L,  R.  A.  773,  38 
Pac.  94,  722;  Bank  of  Lassen 
County  v.  Sherer,  108  Cal.  513,  41 
Pac.  415. 

Compare:  Place  v.  Butternuts 
Woolen  &  C.  Mfg.  Co.,  28  Barb. 
(N.  Y.)  503;  case  reversed,  26 
How.  Pr.  (N.  Y.)  601. 

Stockholder's  kinship  to  Judge 
does  not  disqualify  the  latter  to 
sit  and  act  in  a  cause  in  which 
the  corporation  is  a  party  or 
directly  interested.  —  Dodge,  Mat- 
ter of,  77  N.  Y.  105,  33  Am.  Rep. 
579. 

Wife  of  judge  stockholder  in 
corporation,  disqualifies  judge.  — 
See,  ante,  §  423,  footnote  1. 

10  Attorney  employed  after  is- 
sues framed  related  to  judge  to 
preside  at  trial,  said  to  disqualify, 
but  this  holding  was  pure  dictum 
in  the  case. — Estudillo  v.  Security 
Loan  &  Trust  Co.,  158  Cal.  66,  109 
Pac.  884. 

Attorney  of  record  not  essential 
to  disqualify  trial  judge;  if  he 
appears  in  the  case  as  "of  counsel" 
that  is  sufficient  to  disqualify. — 
.Johnson  v.  Brown,  115  Cal.  694, 
696,   47   Pac.   686. 

In  Colorado  it  has  been  held 
that  the  fact  that  the  trial  judge 
is  a  brother  of  an  attorney  of  one 
of  the  parties  does  not  disqualify 
him  to  hear  and  determine  the 
nause;  but  the  court,  reversing  the 


539 


^425 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I, 


consanguinity  or  affinity,  within  the  third  degree,^^  with 
enumerated  instances  in  which  the  disqualification  may  be 
waived  by  filing  a  written  stipulation  to  that  effect.  Such 
disqualification,  however,  does  not  prohibit  the  presiding 
or  trial  judge  from  regulating  the  calendar  and  arranging 
the  business  of  his  court,^-  or  from  transferring  the  trial 
of  the  cause  to  another  court, ^-^  or  from  calling  another 
judge  to  hear  and  determine  the  cause.  Even  in  those 
cases  in  which  no  objection  is  made  by  any  party  to  the 
action,  the  judge  has  no  right  to  act,  and  should,  of  his 
owTi  motion,^*  decline  to  sit  and  act  as  judge  in  the  cause. 
In  such  a  case  the  judge  can  not  dismiss  the  action ;  and 
if  he  should  make  an  order  dismissing  it,  such  order  will 
be  void,  on  the  ground  of  his  incapacity  to  act  in  the 
cause. ^^  Should  a  judge  thus  related  within  the  prohib- 
ited degree  sit  and  act  at  a  trial  of  a  cause,  any  judgment 
rendered  will  not  only  be  voidable,  but  void,^^  on  the 


judgment  on  other .  grounds,  sug- 
gested the  advisability  of  calling 
in  another  judge  on  the  retrial  of 
the  cause,  if  a  change  in  the  place 
of  trial  was  not  granted  in  the 
meantime. — Patrick  v.  Crowe,  15 
Colo.  543,  25  Pac.  985. 

Son  having  contingent  fee  in  the 
cause,  judge  disqualified  by  reason 
of  relationship  to  attorney. — 
Howell  V.  Budd,  91  Cal.  342,  27 
Pac.  747;  Vine  v.  Jones,  13  S.  D. 
54,  59,  82  N.  W.  82.  See,  to  same 
effect,  Johnson  v.  State,  87  Ark. 
45,  50,  18  L.  R.  A.  (N.  S.)  619,  112 
S.  W.   143. 

11  People  ex  rel.  Carrillo  v.  De  la 
Guerra,  24  Cal.  73. 

Fourth  degree  in  New  Hamp- 
shire.— Fowler  v.  Brooks,  64  X.  H. 
423,  10  Am.  St.  Rep.  425,  13  All 
417. 

Sixth  degree  in  Tennessee. — 
Hume  V.  Commercial  Bank,  78 
Tenn.  (10  Lea)  1,  43  Am.  Rep.  290. 


Ninth  degree  at  common  law. — 
O'Connor  v.  State,  9  Fla.  215; 
Morrison  v.  McKinnon,  12  Fla. 
552. 

12  People  ex  rel.  Carrillo  v.  De 
la  Guerra,  24  Cal.  73. 

i:i  People  ex  rel.  Carrillo  v.  De 
la  Guerra,   24  Cal.  73. 

14  People  ex  rel.  Carrillo  v.  De 
la  Guerra,  24  Cal.  73. 

15  People  ex  rel.  Carrillo  v.  De 
la  Guerra,  24  Cal.  73;  Abrams  v. 
State,  31  Tex.  Cr.  App.  449,  452, 
20  S.  W.  987;  State  ex  rel.  Cougill 
V.  Sachs,  3  Wash.  691,  695,  29  Pac. 
446. 

Extension  of  time  within  which 
to  do  an  act  required  in  the  cause 
is  within  the  prohibition  where 
the  trial  judge  is  disqualified  by 
relationship. — See  Johnson  v.  Ger- 
man American  Ins.  Co.,  150  Cal. 
339,  88  Pac.  985. 

ic  Judicial  discretion  exercised, 
the  act  is  void  in  a  case  where  he 


540 


ell.  XVII.]  RELATIONSHIP — "pARTY"W1I0.  §§42G,  42( 

i>TOund  of  the  incapacity  of  the  judge  to  sit  and  act  in  the 
cause/^  and  such  judgment  will  be  reversed  on  appeal;''* 
consent  of  tlie  parties  that  the  judge  may  sit  and  act  can 
not  validate  the  judgment/'' — except  in  those  instances 
especially  provided  for. 

§  426. '  *  Party  ' '    includes    whom. 

The  w^ord  ''party,"  as  used  in  the  California  statute  and 
statutes  having  a  similar  provision,  is  not  confined  to  the 
persons  whose  names  appear  in  the  record,  but  includes 
all  persons  whose  interests  are  represented  by  parties  to 
the  record.^  Thus,  wdiere  a  bank  is  in  fact  the  real  party 
in  interest  in  a  cause,  it  is  a  ''party"  to  the  suit  within 
the  provision  of  the  statute,  notwithstanding  the  fact  that 
the  suit  is  instituted  in  the  name  of  a  private  individual. - 
And  where  a  person  has  filed  a  claim  in  insolvency  pro- 
ceedings, he  is  a  "  party ' '  to  such  proceedings  within  the 
statute.* 

§  427. Rule  for  determinixg  rela- 
tionship. In  California  rule  for  computing  the  degrees 
of  relationship  is  the  civil-law  rule;^  that  is  to  say,  the 
degrees  of  kindred  are  established  by  the  number  of  gen- 
is  disqualified  from  acting.  —  Fre-  Bloomfield  Gravel  Min.  Co.  v.  Key- 
vert  V.  Swift,  19  Nev.  363,  11  Pac.  ser,  58  Cal.  315,  322;  Fredericks 
273.  v.  Judah,  73  Cal.  604,  608,  15  Pac. 

17  See  authorities,  footnote  15,  305;  Briggs  v.  Briggs,  80  Cal.  253, 
this  section.  255,    22    Pac.    342;    Stockwell    v. 

isOrd  V.  De  la  Guerra,  18  Cal.  White  Lake  Tp.  Board,  22  Mich. 
67;  De  la  Guerra  v.  Burton,  23  Cal.  341,  350;  Hodde  v.  Susan,  58  Tex. 
592;  People  ex  rel.  Carrillo  v.  De  389;  Gains  v.  Barr,  60  Tex.  676; 
la  Guerra,  24  Cal.  73,  77;  Ruse  v.  Schultze  v.  McLeary,  73  Tex.  92, 
Moore  (Cal.  October  Term,  1863),  11  S.  W.  924. 
unreported.  2  Lynip   v.   Alturas    School    Dis- 

19  Oakley  v.  Aspinwall,  3  N.  Y.      trict,    29    Cal.   App.    158,   155   Pac. 
547;  Abrams  v.  State,  31  Tex.  Cr.      109. 
App.  449,  452,  20  S.  W.  987.  3  Chinette   v.    Conklin,    105    Cal. 

1  Howell   v.   Budd,   91   Cal.    342,      465,   38    Pac.    1107;    Chope,   In   re, 
352-3,  27  Pac.  747.     See:   Johnson      112  Cal.  630,  632,  44  Pac.  1066. 
V.   State,  87  Ark.  45,  18   L.   R.  A.  i  People   ex  rel.   Carrillo   v.    De 

(N.  S.>  619,  112  S.  W.  143;   North      la  Guerra,  24  Cal.  73,  76. 

541 


§427 


CODE  PLEADING  AND  PRACTICE. 


[Ft.  r, 


erations,  and  each  generation  is  called  a  degree.-  In  the 
collateral  line  the  degrees  are  counted  by  generations 
from  one  of  the  relations  up  to  a  common  ancester,  and 
down  from  common  ancester  to  the  other  relation.  This 
makes  brothers  related  in  the  second  degree;  uncle  and 
nephew  or  niece,  in  the  third  degree ;  cousins-german,  in 
the  fourth  degree,  and  so  on.^ 

Illustrations  under  rule — Disqualifying  judge  to  sit  and 
act  in  a  cause  when  one  of  the  parties  thereto,  or  a  party 
in  interest,  or  an  attorney  or  counsel  for  one  of  the  par- 
ties, is  a  brother-in-law,^  cousin,^  first  cousin  by  mar- 
riage,*' a  nephew,'^  a  niece,^  a  son,^  and  the  like. 

Not  disqualifying,  it  has  been  held  on  the  other 

hand,  where  the  party  or  the  attorney  is  cousin-german 
or  second  cousin,^"  or  is  a  cousin  of  the  wife  of  the  judge, ^^ 
or  is  husband  of  the  aunt  of  the  wife  of  the  judge,^^  or 
husband  of  the  sister  of  the  judge's  Avife,^^  or  husband  of 
the  niece  of  the  wife  of  the  judgej^"*  and  the  like. 


2  Kerr's  Cyc.  Cal.  Civil  Code, 
§  1389. 

3  Id.,  §§1389-1393,  and  notes. 

4  Hall  V.  Thayer,  105  Mass.  219, 
7  Am.  Rep.  513. 

Compare:  Footnote  13,  this  sec- 
tion. 

•"'  Horton  v.  Howard,  79  Mich. 
CA2,  19  Am.  St.  Rep.  198,  44  N.  W. 
1112. 

<i  See  Robinson  v.  Southern  Pac. 
Co.,  105  Cal.  526,  28  L.  R.  A.  773, 
38  Pac.  94. 

7  Horton  v.  Howard,  79  Mich. 
642,  19  Am.  St.  Rep.  198,  44  N.  W. 
1112. 

s  State  ex  rel.  Perez  v.  Wall,  41 
Fla.  463,  79  Am.  St.  Rep.  195,  49 
L.  R.  A.  195,  26  So.  1020. 

!)  Howell  V.  Budd,  91  Cal.  342, 
27  Pac.  747;  Vine  v.  Jones,  13  S.  D. 
54,  59,  82  N.  W.  82;  Taber,  In  re, 
13  S.  D.  71,  82  N.  W.  398. 


10  See  Reed  v.  Newcomb,  62 
Vt.  75.  19  Atl.  367. 

11  Harris,  Ex  parte,  26  Fla.  77, 
23  Am.  St.  Rep.  548,  6  L.  R.  A. 
713,  7  So.  1;  Blalock  v.  Waldrup, 
84  Ga.  145,  20  Am.  St.  Rep.  350, 
10  S.  E.   622. 

12  See  State  ex  rel.  Perez  v. 
Wall,  41  Fla.  463,  79  Am.  St.  Rep. 
195,  49  L.  R.  A.  548,  26  So.  1020. 

13  Hume  V.  Commercial  Bank,  78 
Tenn.  (10  Lea)  1,  43  Am.  Rep.  290. 

Compare:  Footnote  4,  this  sec- 
tion. 

14  State  ex  rel.  Perez  v.  Wall, 
41  Fla.  463,  79  Am.  St.  Rep.  195, 
49  L.  R.  A.  548,  26  So.  1020,  citing 
Kirby  v.  State,  89  Ala.  63,  8  So. 
110;  Deupree  v.  Deupree,  45  Ga. 
415;  O'Neal  v.  State,  47  Ga.  229; 
Tegarden  v.  Phillips,  14  Ind.  App. 
27,  42  N.  E.  549;  Chase  v.  Jen- 
nings,   38   Me.    44;    Bigelow    v. 


542 


1 


;h.  XVII.] 


JUDGE   FORMER    COUNSEL. 


§428 


§428. 


(3)  Former  counsel  in  cause,  etc. 


Under  the  California  statute^  a  judge  is  disqualified  to 
sit  and  act  in  a  cause,  and  it  is  a  sufficient  ground  for  the 
transfer  of  the  place  of  trial,  when  in  the  action  or  pro- 
ceeding, or  in  any  previous  action  or  proceeding  involv- 
ing any  of  the  issues,  he  has  been  attorney  or  counsel  for 
either  party ;  or  where  he  has  given  advice  to  either  party 
upon  any  matter  involved  in  the  action  or  proceeding.^ 


Sprague,  140  Mass.  425,  5  N.  E. 
144;  Higbee  v.  Leonard,  1  Den. 
(N.  Y.)  186;  Eggleston  v.  Smiley, 
17  Johns.  (N.  Y.)  133;  Chinn  v. 
State,  47  Ohio  St.  575,  11  L.  R,  A. 
630,  26  N.  E.  986;  Bank  v.  Shewey, 
4  Watts  (Pa.)  218;  Moses  v. 
State,  30  Tenn.  (11  Humph.)  232; 
Johnson  v.  Richardson,  52  Tex. 
481;  Rector  v.  Drury,  4  Chand. 
(Wis.)    24,  3  Pin.  298. 

1  Kerr's  Cyc.  Cal.  Code  C  i  v. 
Proc,  2d  ed.,  §170,  par.  3;  Bien- 
nial Supp.  1915,  p.  3040. 

2  Bamhart  v.  Fulkerth,  59  Cal. 
130;  Upton  v.  Upton,  94  Cal.  26, 
28,  29  Pac.  411;  Sterling  No.  2 
Ditch  Co.  V.  Uiff  &  Platte  Valley 
Ditch  Co.,  24  Colo.  491,  52  Pac. 
669;  People  ex  rel.  Brown  v.  Dis- 
trict Court,  26  Colo.  226,  56  Pac. 
1115;  Lawson  v.  People  (Colo.), 
165  Pac.  771;  Stevens  v.  Hull,  8 
Idaho  549,  62  Pac.  282;  Glass' 
Estate,  In  re,  127  Iowa  646,  103 
N.  W.  1013;  Tootle  v.  Berkley,  60 
Kan.  446,  56  Pac.  755;  leaser  v. 
Lapeer  Circuit  Judge,  48  Mich.  176, 
12  N.  W.  40;  Harrington  v.  Hayes 
County,  81  Neb.  231,  129  Am.  St. 
Rep.  680,  115  N.  W.  773;  Dodd  v. 
State,  5  Okla.  Cr.  513,  115  Pac. 
632. 

Action  to  revive  judgment  in 
action  in  which  presiding  judge 
had  been  attorney,  he  is  disqual- 
ified  to   sit    and    act. — Stevens   v. 


Hull,  8  Idaho  549,  62  Pac.  282; 
Tootle  V.  Berkley,  60  Kan.  446, 
56  Pac.  755. 

Especially  when  the  judge  is 
seeking  to  enforce  his  attorney's 
lien  for  his  fees  on  the  judgment 
sought  to  be  revived. — Tootle  v. 
Berkley,  60  Kan.  446,  56  Pac.  755. 

Calling  in  another  judge  to  hear 
and  determine  case  where  presid- 
ing judge  disqualified  by  previous 
connection  with  the  case. — Upton 
V.  Upton,  94  Cal.  26,  28,  29  Pac. 
411;  Renny  v.  Olds,  5  Cal.  Unrep. 
182,  42  Pac.  239;  Sterling  No.  2 
Ditch  Co.  V.  Iliff  &  Platte  Valley 
Ditch  Co.,  24  Colo.  491,  52  Pac. 
669. 

Intention  of  statute  that  no 
judge  shall  preside  who  is  not 
wholly  free,  disinterested,  im- 
partial and  independent. — Lawson 
V.  People  (Colo.),  165  Pac.  771. 

Material  witness  on  former 
trial,  judge  disqualified.— Burling- 
ton Ins.  Co.  V.  McLeod,  40  Kan.  54, 
19  Pac.  354.  See:  Hopkins  v. 
Scott,  38  Neb.  661,  57  N.  W.  391: 
Powers  V.  Cook,  48  Okla.  43,  149 
Pac.  1121. 

But  the  mere  fact  that  the  judge 
may  be  called  as  a  witness  in  a 
cause  does  not,  of  itself,  disqual- 
ify him. — S  t  a  t  e  v.  Lackridge,  6 
Okla.  Cr.  216,  Ann.  Gas.  1913C.  251. 
45  L.  R.  A.  (N.  S.)  525,  118  Pac. 
152. 


543 


§  428  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

Thus  where  the  probate  judge  held  a  power  of  attorney 
from  certain  persons  claiming  to  be  the  heirs-at-law  of 
the  deceased,  and  authorizing  him  to  receive  for  them  all 
money  and  property  which  they  might  be  entitled  to  from 
the  estate,  for  which  service  he  was  to  receive  a  percent- 
age upon  the  proceeds  of  the  estate,  and  that  these  pro- 
ceedings were  instituted  at  the  instance  of  said  probate 
judge,  a  change  of  venue  should  be  granted.^  A  change  of 
the  place  of  trial  may  be  had  on  the  ground  that  the  judge 
of  the  court  in  which  the  action  was  brought  had  received 
a  general  retainer  from  one  of  the  parties.^  But  a  judge 
is  not  disqualified  from  sitting  at  the  trial  of  a  cause,  for 
the  reason  that,  before  his  election  to  the  bench,  he  had 
been  attorney  for  one  of  the  parties  in  another  action 
involving  one  of  the  issues  in  the  case  on  trial, ^'^  asserting 
like  claims  against  the  defendant,*'  or  had  represented  the 
people  in  a  criminal  prosecution  against  the  defendant," 
or  had  been  counsel  for  the  plaintiff  in  another  suit 

Motion    to    vacate    judgment    in  Pac.  804;  State  ex  rel.  McCormick 

action    in    which    presiding    judge  v.  Woody,   14   Mont.   455,   36   Pac. 

was  counsel,  he  is  disqualified  to  1043. 

hear  and  determine  the  motion. —  Presenting  identical  question  to 

People   ex   rel.   Brown   v.   District  court  as  attorney  for  other  parties. 

Court,  26  Colo.  226,  56  Pac.  1115.  does    not   disqualify   judge    subse- 

Order  to   sell   decedent's    realty  quently  elected  from  hearing  and 

to  pay  debts  may  properly  be  determining  the  cause,  where  his 

entered    by   a   judge   who,   before  former  client  is  not  a  party  to  the 

his  elevation  to  the  bench,  acted  action.  —  Hamilton    County    v. 

as  attorney  for  the  administrator.  Aurora  Nat.  Bank,  89  Neb.  256,  131 

—Ryan  v.  Geigel,   25   Colo.   A  p  p.  N.  W.  221. 

122,  136  Pac.  804.  3  White,  Estate  of,  37  Cal.  190; 

Preparation    of   petition   for   let-  Oakley  v.  Aspinwall,  3  N.  Y.  547. 

ters    of    administration    on    estate  4  K^rn  Valley  Water  Co.  v.  Mc- 

of    decedent,    before    elevation   to  Cord,  70  Cal.  646,  11  Pac.  798;  Lux 

bench,    does    not   disqualify    from  v.  Haggin  (Cal.),  13  Pac.  654. 

sitting  as  judge  in   a   proceeding  5  Cleghom  v.  Cleghorn,  66  Cal. 

to  foreclose  a  mortgage  on  prop-  309,  5  Pac.  516. 

erty  belonging  to  the  e  s  t  a  t  e. —  6  Lassen   I  r  r.    Co.   v.    Superior 

Morrissey   v.   Gray,    160  Cal.    390,  Court,  151  Cal.  357,  90  Pac.  709. 

808,  117  Pac.  438,  442.     See:  Ryan  7  Karcher  v.   Pearce,  14   Colo. 

V.  Geigel,   25   Colo.   App.   122,   136  557,  24  Pac.  568. 

544 


I 


ch.  XVII.]  JUDGE  FORMER   COUNSEL.  §  428 

against  the  defendant.^  The  fact  that  a  presiding  judge, 
before  his  election,  was  the  attorney  for  an  administra- 
trix in  the  execution  of  her  trust,  does  not  disqualify  him 
to  hear  and  determine  an  application  for  the  removal  of 
the  administratrix.^  Where  a  judge,  prior  to  his  eleva- 
tion to  the  bench,  was  prosecuting  attorney  and  partici- 
pated in  the  prosecution  of  the  defendant,  he  is  disquali- 
fied to  sit  and  act  in  the  final  hearing  and  trial  of  the 
cause,  or  to  make  any  ruling  or  order  therein,  other  than 
to  make  and  enter  an  order  showing  his  disqualification  ;^" 
but  he  will  not  be  disqualified  to  order  carried  into 
effect  the  execution  of  a  sentence  of  commitment  pro- 
nounced by  another  trial  judge,  after  expiration  of  a  stay 
of  the  execution  pending  an  appeal,ii  or  for  the  trial  of  a 
cause  arising  from  the  forfeiture  by  the  accused  of  his 
bail  bond.i-  The  mere  fact  that  the  presiding  judge,  as 
attorney,  conducted  the  preliminary  examination  result- 
ing in  the  prosecution  of  the  defendant,  does  not  disqual- 
ify him  to  hear  and  determine  the  charge  against  the 
(defendant,  in  the  absence  of  a  showing  in  the  supporting 
affidavits  of  bias  or  prejudice^^  on  his  part.^^  In  a  case  in 
which  the  father  and  step-mother  of  the  defendant  were 
killed  at  the  same  time,  the  defendant  being  on  trial  for 
the  murder  of  his  father,  the  trial  judge  was  held  not  to 
be  disqualified  from  presiding  at  the  trial  by  reason  of 
the  fact  that,  before  elected  to  be  judge,  he  was  consulted 
by  a  brother  of  the  step-mother  as  to  the  distribution  of 
the  estate.^^ 

^^^-  13  As  to  bias  and  prejudice,  see, 

9  State  ex  rel.  McCormick  v.      post,  §429. 

Woody,  14  Mont  455,  36  Pac.  1043.  i.of^f^    „     t      i    -^         ^    r^^  , 

,«^^^^         o.x     .       r^,  ,      ^  14  State    V.    Lockndge,    6    Okla. 

loDodd  V.  State,  5  Okla.  Cr.      „      „,.     .         ^        ,„.„!,„ 

513    115  Pac    632  '   ^^'  '^""-  ^^®-  ^^^^*^'  ^^'^'  "^^ 

li  Ross  V.  State,  8  Wyo.  351,  57      ■-  ^-  ^-  ^^-  ^"^  ^^5,  118  Pac.  152. 

Pac.  924.  i5Woolfolk  v.  State,  85  Ga.  69, 

12  Hobbs   V.    Campbell,    79    Tex.      H  S.  E.  814. 

360,  15  S.  W.  282. 

I  Code  PI.  and  Pr.— 35  r  j^r 


§429 


CODE   PLEADING  AND   PRACTICE. 


[Pt.  I, 


§429. 


(4)  Bias  and  prejudice  of  presid- 


ing JUDGE.  In  the  absence  of  a  statute  to  that  effect,  not- 
^^dth standing  the  watchful  care  of  the  common  law  to 
secure  a  fair  and  impartial  administration  of  justice/ 
bias  or  prejudice  of  the  judge  who  is  to  try  a  cause  is  not 
a  ground  for  a  change  in  the  place  of  the  trial.-  The 
matter  is  regulated  by  statute  in  California, — and  the 
same  is  now  true  in  the  majority  if  not  all  the  jurisdic- 
tions having  the  reforaied  system  of  judicature,^ — under 
which  statute,  whenever  it  appears  from  an  affidavit  or 
affidavits  on  file  that  either  party  to  an  action  can  not 
have  a  fair  and  impartial  trial  before  the  judge  in  whose 


1  See,  ante,    §  425. 

2  See:  McCauley  v.  Weller,  12 
Cal.  500;  People  v.  Williams,  24 
Cal.  31;  McDowell  v.  Levy,  5  Cal. 
Unrep.  590,  8  P  a  c.  857;  Bulwer 
Consol.  Min.  Co.  v.  Standard  Con- 
sol.  Min.  Co.,  83  Cal.  613,  23  Pac. 
1109;  Jones,  In  re,  103  Cal.  397, 
37  Pac.  385;  Ritzman  v.  Burnham, 
114  Cal.  522,  46  Pac.  379;  Davis, 
Estate  of,  11  Mont.  1,  27  Pac.  342. 

3  In  Colorado  no  absolute  right 
in  party  to  have  place  of  trial 
changed  on  account  of  bias  of 
judge,  the  matter  resting  in  the 
sound  discretion  of  the  court. — 
Nordloh  v.  Packard,  45  Colo.  515, 
101  Pac.  787. 

In  Idaho  constitution  guarantees 
right  of  trial  by  unprejudiced 
judge. — Day  v.  Day,  12  Idaho  563, 
86  Pac.  533. 

In  Montana  disqualification  for 
bias  and  prejudice  may  be  invoked 
after  trial  has  been  had  and  a 
motion  is  pending  for  a  new  trial. 
— State  ex  rel.  Carleton  v.  District 
Court,  33  Mont.  138,  140,  8  Ann. 
Gas.  752,  82  Pac.  789. 

In  Oklahoma  denial  of  change 
in  place  of  trial  on  ground  of 


prejudice  and  bias  of  judge,  pre- 
sumed a  denial  of  justice. — Ellis, 
Ex  parte,  3  Okla.  Cr.  220,  Ann.  Gas. 
1912A,  863,  25  L.  R.  A.  (N.  S.)  653, 
105  Pac.  184.  See:  Caveness  v. 
State,  3  Okla.  Cr.  729,  109  Pac. 
125;  Lewis  v.  Russell,  4  Okla.  Cr. 
129,  111  Pac.  818. 

— Constitutional  provision  guar- 
anteeing to  every  person  charged 
with  crime  a  trial  without  preju- 
dice, does  not  include  the  judge's 
opinion  as  to  the  guilt  or  inno- 
cence of  accused;  to  disqualify, 
supporting  affidavits  must  estab- 
lish that  judge  is  biased  against 
accused  to  such  an  extent  that  he 
can  not  have  a  fair  and  an  im- 
partial trial  before  him. — Ingles  v. 
McMillain,  5  Okla.  Cr.  130,  45 
L.  R.  A.  (N.  S.)  511,  113  Pac.  998. 
See:  O'Brien  v.  Clark,  5  Okla.  Cr. 
112,-  113  Pac.  543;  State  v.  Lock- 
ridge,  6  Okla.  Cr.  216,  Ann.  Gas. 
1913C,  251,  45  L.  R.  A.  (N.  S.)  525, 
118  Pac.  152. 

In  Washington,  judge  intense 
partisan  in  the  cause,  and  finan- 
cially interested,  it  is  error  to 
refuse  to  grant  change  of  place  of 
trial.  —  Barnett  v.  A  s  h  m  o  r  e,  5 
Wash.  163,  31  Pac.  466. 


546 


eh.  XVII.] 


BIAS,    ETC.,    OF   JUDGE. 


§429 


court  the  cause  is  pending  by  reason  of  the  prejudice  or 
bias  of  such  judge,  the  latter  shall  forthwith  secure  the 
services  of  some  other  judge,  of  the  same  or  another 
county,  to  preside  at  the  trial  of  such  action  or  the  hear- 
ing of  such  proceeding.*  Provisions  are  made  regarding 
the  filing  of  supporting  affidavits  and  service  of  the  same 
and  as  to  counter-affidavits.^  The  trial  judge  against 
whom  the  bias  and  prejudice  is  alleged  may  pass  upon 
the  sufficiency  of  the  supporting  affidavits  and  the  coun- 
ter-affidavits.^ 


4  Kerr's  Cyc.  Cal.  Code  C  i  v. 
Proc,  2d  ed.,  §170,  par.  4;  Bien- 
nial Supp.  1915,  p.  3040. 

Contempt  proceedings  against  at- 
torney based  on  his  presenting,  in 
open  court,  to  the  judge  affidavits 
attacking  his  integrity  and  impugn- 
ing his  motives  may  be  heard  by 
the  judge. — Lamberson  v.  Superior 
Court,  151  Cal.  458,  11  L.  R.  A. 
(N.  S.)   619,  91  Pac.  100. 

Disliking  one  attorney  and 
friendliness  toward  the  opposition 
attorney,  and  the  fact  that  he  has 
decided  several  cases  against  the 
former,  does  not  disqualify,  be- 
cause of  bias,  a  judge  to  appoint 
a  receiver  in  pending  litigation 
where  such  attorneys  are  upon 
opposite  sides  of  the  litigation. — 
State  ex  rel.  Boston  &  M.  Consol. 
Copper  &  Silver  Min.  Co.  v.  Dis- 
trict Court,  22  Mont.  220,  56  Pac. 
219. 

Foreign  subpoena  refused  to  de- 
fendant on  trial  upon  a  charge  of 
embezzlement,  while  granting  one 
to  plaintiff,  insufficient  to  show 
bias  on  part  of  trial  judge. — People 
v.  Findley,  132  Cal.  301,  64  Pac. 
472. 

Holding  witness  who  had  just 
testified  until  criminal  prosecution 


could  be  instituted  against  him  for 
perjury,  does  not  show  such  bias 
against  the  defendant  as  will  dis- 
qualify the  judge  to  try  accused 
on  the  perjury  charge. — State  v. 
Brownfield,  67  Kan.  627,  73  Pac. 
925. 

Opinion  as  to  guilt  or  innocence 
of  accused  does  not  disqualify,  in 
Kansas,  where  there  is  not  such 
bias  and  prejudice  in  the  mind  of 
the  judge  as  to  prevent  the  de- 
fendant from  having  a  fair  trial. 
— State  V.  Morrison,  67  Kan.  144, 
72  Pac.  554. 

Prosecution  and  conviction  of  de- 
fendant sixteen  years  before,  on 
charge  of  an  aggravated  assault, 
and  then  laying  the  facts  before 
the  governor,  on  an  application  for 
a  pardon,  insufficient  to  show  bias 
on  part  of  trial  judge. — Hoj't  v. 
Zumwalt,  149  Cal.  381,  86  Pac.  600. 

Successful  candidate  for  office 
against  relative  of  judge,  being 
shown  in  affidavits  of  party  on 
trial  for  embezzlement,  insufficient 
to  show  disqualifying  bias  on  part 
of  tr'-^l  judge. — People  v.  Findley, 
132  Cal.  301,  64  Pac.  472. 

5  Kerr's  Cyc.  Cal.  Code  C  i  v. 
Proc,  2d  ed.,  §170,  par.  4;  Bien- 
nial Supp.  1915,  p.  3040. 

cid. 


541 


§§430,431  code  pleading  and  practice.  [pt.  i, 

^  430. (5)  In  case  against  keclamatiox 

DISTRICTS,  ETC.  By  special  statutory  provision  in  Cali- 
fornia judges,  etc.,  are  disqualified  from  hearing  and 
determining  causes  involving  real  properties,  easements, 
rights  of  way,  and  the  like,  in  their  respective  counties, 
belonging  to  reclamation  districts,  levee,  swamp  land  and 
drainage  districts,  in  actions  or  proceedings  brought 
against  the  same,  and  authorizing  the  governor  to  appoint 
other  judges,  etc.,  to  hear  and  determine  such  causes, 
unless  the  parties  to  the  action  or  proceeding  shall  sign 
and  file  a  written  stipulation  agreeing  upon  some  other 
judge,  etc.,  to  sit  and  act  in  place  of  the  judge,  etc.,  dis- 
qualified under  the  provision.^  This  act  has  been  held  to 
be  constitutional.^ 

<§  431.  Hearing  and  determination  of  application  for 
CHANGE.  We  have  already  seen  that  the  effect  of  filing  a 
demand  and  supporting  affida\dts  for  a  change  in  the 
place  of  trial  of  a  cause  is  to  deprive  the  court  of  all 
power  and  jurisdiction  in  the  cause,  except  to  hear  and 
determine  the  application  and  either  grant  or  refuse  the 
same,  and  enter  an  order  giving  effect  to  such  determina- 
tion.^ It  is  the  duty  of  the  court  to  hear  and  determine 
the  motion  for  change  before  taking  up  any  judicial  ac- 
tion in  the  cause  because  the  motion  intercepts  and  cuts 
off  all  judicial  power  in  the  cause,  other  than  the  deter- 
mination of  such  motion,  and  no  other  question  can  be 
considered  until  that  motion  is  determined  one  way  or  the 
other.-  The  hearing  of  the  application  on  the  motion, 
where  application  is  made  on  filing  a  special  demurrer, 
can  not  be  continued  until  the  coming  in  of  the  answer,'^ 

1  Kerr's  Cyc.  Cal.  Code  C  i  v.  pie,  2  Colo.  App.  99,  105,  29  Pac. 
Proc,  2d  ed.,  §170,  par.  5;  Bien-  924.  See  Brady  v.  Times-Mirror 
nial  Supp.  1915,  p.  3040.  Co.,  106  Cal.  56,  39  Pac.  209. 

2  Sacramento  &  San  Joaquin  2  Brady  v.  Times-Mirror  Co.,  106 
Drainage  Dist.  v.  Rector,  172  Cal.  Cal.  56,  39  Pac.  209. 

385.  156  Pac.  506.  3  Heald   v.   Hendy,   65   Cal.   321, 

1  See,  ante,  §  395;  Smith  v.  Peo-      322,  4  Pac.  27. 

548 


ell.  X\'1I.]  HEARING    OF    .\1'I•1.I(^\TI0N.  §  -ll^l 

because  the  rights  of  the  moving  party  to  such  a  change 
must  be  determined  by  the  conditions  of  the  cause  at  the 
time  his  demand  is  made  and  supporting  affidavits  filed;* 
hence  there  can  be  no  postponement  until  after  answer 
filed  in  order  to  permit  the  opposing  party  to  make  a 
counter-motion  to  retain  the  cause^  for  the  convenience 
of  \vitnesses.^ 

Postponing  action  on  demand  and  motion  for  a  change 
in  the  place  of  trial,  where  the  right  to  such  a  change  is 
based  upon  the  ground  of  local  prejudice  and  bias  pre- 
venting the  moving  party  from  being  able  to  secure  a  fair 
and  impartial  trial,  until  after  an  attempt  to  impanel  a 
jury,  with  permission  to  renew  the  application,  seems  to 
be  approved  in  some  cases,"^  but  is  out  of  harmony  with 
the  doctrine  as  to  the  effect  of  such  a  demand  upon  the 
power  and  jurisdiction  of  the  court,  as  above  laid  down. 
But  if  such  a  practice  is  tolerated  a  failure  to  renew  the 
application  constitutes  an  abandonment  and  waiver  of  the 
right  to  a  change  in  the  place  of  trial. ^ 

When  demand  is  refused  the  trial  of  the  cause  must 
proceed,  notwithstanding  an  appeal  from  the  order  deny- 
ing the  application  for  a  change.^  The  appeal  does  not 
affect  the  jurisdiction  of  the  court  to  proceed  with  the 
trial  of  the  cause ;  that  is,  does  not  operate  as  a  stay  of 
the  proceedings.  If  the  ruling  is  erroneous,  it  is  subject 
to  be  corrected,  like  any  other  error  of  the  trial  court,  on 
the  appeal ;  and  if  reversed  any  trial  and  judgment  must 

4  Wallace   v.    Owsley,    11    Mont.  s  People  v.  Staples,  149  Cal.  412, 

219,  221,  27  Pac.  790.  86  Pac.  888. 

.-.  As  to  counter-motion  to  retain  ^^  ^^  abandonment,  waiver  and 

cause,  see,  ante,  §  406.  estoppel    to   raise  objections,   see, 

'!  Heald  v.   Hendy,   65   Cal.   321,  .      scoocoot   oot       ^  ooo 

„".,■;'           „^  ante,  §§  335-337,  887  and  388. 
322,  4  Pac.  27;  Ah  Fong  v.  Sternes, 

79  Cal.  30,  33,  21  Pac.  381;  Mc-  »  People  ex  rel.  Scannell  v.  Whit- 
Sherry  V.  Pennsylvania  C  o  n  s  o  1.  ^ey,  47  Cal.  584,  585;  Howell  v. 
Gold  Min.  Co.,  97  Cal.  637,  641,  32  Thompson,  70  Cal.  635,  636,  11  Pac. 
Pac.  711.  789;    First  Nat.  Bank  v.  Dutcher. 

7  People  V.  Goldenstein,  76  Cal.  128  Iowa  426,  1   L.   R.  A.   (N.  S.) 

328,  19  Pac.  161;  People  v.  Staples,  142,  104  N.  W.  501. 
149  Cal.  412,  86  Pac.  888. 

54'J 


§432 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  I, 


fall  with  a  reversal  because  of  that  error  in  refusing  a 
demand  for  a  change.  But  any  judgment  rendered  at  the 
conclusion  of  such  a  trial  before  the  appeal  is  disposed 
of  will  not  be  a  nullity  or  void  for  the  want  of  power  on 
the  part  of  the  court  to  proceed  with  the  trial  of  the  cause. 
Mandamus  will  not  lie  to  compel  the  change  in  the  place 
of  trial  and  stop  the  trial  by  the  court  denying  the  appli- 
cation for  a  change.^" 

<^  432.  Order — Denying  application  for  change.  The 
party  applying  for  a  change  in  the  place  of  trial  on  anj^ 
of  the  grounds  provided  by  statute,  must  comply  with  all 
the  requirements  of  that  statute/  and  his  supporting  affi- 
davits must  show  that  party  is  mthin  the  provisions  of 
the  statute,  or  the  application  and  demand  for  a  transfer 
will  be  denied.  The  application  will  be  denied  where  it  is 
clear  that  the  defendant's  object  is  delay  merely r^  As 
where  nearly  six  months  had  elapsed  before  the  motion 
was  made,  and  long  after  the  defendant  had  answered;-'* 
or  where  by  stipulation  evidence  is  confined  to  facts  occur- 
ring in  the  county  where  venue  is  laid  ;*  or  where  plaintiff 
undertook  to  bear  all  expenses  of  bringing  defendant's 


10  See:  CAL. — People  ex  rel. 
Flagley  v.  Hubbard,  22  Cal.  34,  35; 
San  Joaquin  County  v.  Superior 
Court,  98  Cal.  602,  33  Pac.  482. 
COLO. — People  ex  rel.  Kindel  v. 
Clerk  District  Court,  22  Colo.  280, 
44  Pac.  506.  ILL. — People  ex  rel. 
Clark  V.  McRoberts,  100  111.  458. 
IOWA  —  O  1 1  u  m  w  a,  City  of,  v. 
Schaub,  52  Iowa  515,  3  N.  W.  529. 
KAN. — Barnhart  v.  Davis,  30  Kan. 
520,  2  Pac.  633;  Ellis  v.  Whitaker, 
62  Kan.  582,  64  Pac.  62;  Hamilton 
V.  Smart,  Judge,  78  Kan.  218,  95 
Pac.  836.  KY.— Galbraith  v.  Wil- 
liams, 106  Ky.  431,  50  S.  W.  686. 
MO. — Chambers,  Ex  parte,  10  Mo. 
App.  240.  NEB.— State  ex  rel. 
Proctor  V.  Cotton,  33  Neb.  560,  50 
N.  W.  688.     OKLA.— Wiudfrey  v. 


Benton,  25  Okla.  445,  447,  106  Pac. 
853.  WIS.— State  ex  rel.  Johnson 
V.  Washburn,  22  Wis.  99. 

See,  also,  post,  §  433,  footnote  5. 

1  Lewin  v.  Dille,  17  Mo.  64.  See 
Dennison  v.  Chapman,  102  Cal. 
618,  36  Pac.  943. 

2  Kilbourne  v.  Fairchild,  12  Wend. 
(N.  Y.)  293;  Garlock  v.  Dunkle,  22 
Wend.   (N.  Y.)   615. 

3  Tooms  V.  Randall,  3  Cal.  438. 
Dilatory  plea  abhorred  by  law, 

is  the  ground  of  this  rule. — See; 
Reed  v.  Harshall,  12  Cal.  App.  704, 
108  Pac.  722;  Riverdale  Min.  Co. 
V.  Wicks,  14  Cal.  App.  532,  112 
Pac.  898. 

4  Smith  V.  Averill,  1  Barb.  (N.  Y.) 
28. 


550 


I 


Ch.  XVII.]  ORDER   DENYING   CHANGE.  §  432 

witnesses  f  or  where,  after  service  of  papers  for  a  motion 
to  change  venue,  plaintiff  amended  his  complaint  chang- 
ing the  venue  f  or  agreed  to  change  the  venue ;  or  where 
defendant  suffered  a  default.'^  Probable  delay  of  trial  in 
the  county  which  would  otherwise  be  most  convenient  is  a 
reason  for  refusing  the  change.^  An  application  by  de- 
fendants for  change  of  venue  to  another  county  on  the 
ground  that  they  are  residents  of  such  county,  that  the 
action  is  founded  on  a  contract  to  be  performed  therein, 
and  that  the  summons  was  there  served  on  them,  but 
which  does  not  show  that  the  plaintiff  was  not  a  resident', 
of  the  county  where  the  action  is  brought  when  the  suit " 
was  commenced,  is  properly  refused.^  But  it  is  held  that 
where  a  motion  for  change  of  venue  to  the  proper  county 
for  trial  has  been  made,  upon  a  sufficient  affidavit  of^ 
merits,  the  failure  of  the  applicant  for  transfer  to  appear 
at  the  time  set  for  the  hearing  of  his  motion  affords  no 
ground  for  denying  the  application.^'*  An  order  refusing 
to  change  the  venue  to  the  county  in  which  the  defendant 
claims  to  reside  will  not  be  reversed  upon  appeal  if  the 
evidence  as  to  the  place  of  residence  of  the  defendant  is 
conflicting.^^  A  mere  showing  by  the  plaintiff  that  he  was 
ignorant  of  the  place  of  residence  of  the  defendant  when 
the  action  was  commenced,  without  showing  that  he  used 
all  proper  diligi^nce  to  ascertain  his  residence  before  suit 

sWortley    v.    Gilbert,    4    Johns.  ii  Daniels  v.  Church,  96  Cal.  13, 

(N.  Y.)    492.  30  Pac.  798;  Ludwig  v.  Harry,  126 

Compare:  Rathbone  v.  Haiman,  cal.   377,   379,  58   Pac.   858;    Doak 

4  Wend.   (N.  Y.)   208.  ^_   Brunson,    152   Cal.    19,   91    Pac. 


1002;    Bradley   v.   Davis,    156   Cal. 
268,   104    Pac.   303;    Nicholson   v. 


6  Wolverton   v.   Wells,    1    Hill 
(N.  Y.)    374. 

7  Brittain    v.    Peabody,    4    Hill 
(N    Y  )  61    69  Nicholson,   16   Cal.   App.   755,    117 

8  King  V.  Vanderbilt,  7  How.  Pr.  ^^^-   ^^^^■ 

(N.  Y.)   385;   Goodrich  v.  Vander-  Affidavits  of  prevailing  party,  in 

bilt,  7  How.  Pr.   (N.  Y.)   467.  case    of   a    conflict   in    supporting 

!» De   Wein   v.   Osborn,   12   Colo.  affidavits    and    counter-affidavits, 

407,  21  Pac.  189.  will   be  taken  as  true,   on  appeal 

10  State  ex  rel.  Allen  v.  Superior  from  the  order. — Doak  v.  Brunson, 

Court,  9  Wash.  608,  38  Pac.  206.  152  Cal.  19,  91  Pac.  1002. 

551 


§433 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


and  failed,  does  not  entitle  the  plaintiff  to  have  a  trial  of 
the  action  in  the  county  designated  by  him  other  than  that 
of  the  defendant's  residence.^^ 


^433. 


Appeal  and  mandamus.    It  is  error  for 


the  court  to  refuse  to  change  the  place  of  trial  upon  a 
proper  showing.^  An  appeal  from  an  order  refusing  to 
change  the  venue  of  an  action  does  not  operate  to  stay 
proceedings  in  the  court  below  until  such  an  appeal  is 
determined.^  An  order  refusing  a  change  of  venue  on  the 
application  of  defendant  in  a  criminal  prosecution  will 
be  reviewed  only  in  case  of  gross  abuse  of  discretion.^ 
But  it  is  not  to  be  supposed  that  the  Supreme  Court  will 
trust  implicitly  in  the  discretion  of  inferior  courts.* 

Mandamus  will  not  lie  to  compel  a  court  to  change  the 
place  of  trial  when  a  motion  for  change  of  venue  is  over- 
ruled without  delay;  an  appeal  from  the  order  affords  a 
complete  remedy.  Mandamus  is  proper  only  when  the 
court  unreasonably  delays  to  decide  the  motion.^  Under 
Nevada  practice  an  order  changing  the  place  of  trial  is 


12  Thurber  v.  Thurber,  113  Cal. 
607,  45  Pac.  852;  Mahler  v.  Drum- 
mer Boy  Gold  Min.  Co.,  7  Cal.  App. 
193,  93  Pac.  1065.  See  Bachman  v. 
Cathray,  113  Cal.  498,  45  Pac.  814. 

As  to  insufficiency  of  affidavit 
of  diligence  on  the  part  of  the 
plaintiff  to  ascertain  the  county  of 
residence  of  the  defendant,  see 
Mahler  v.  Drummer  Boy  Gold  Min. 
Co.,  7  Cal.  App.  193,  93  Pac.  1065. 

1  Grewell  v.  Walden,  23  Cal.  165. 

2  Howell  V.  Thompson,  70  Cal. 
635,  11  Pac.  789. 

3  People  V.  Fisher,  6  Cal.  154; 
Watson  V.  Whitney,  23  Cal.  378; 
People  V.  Coughton,  44  Cal.  95; 
Avila  V.  Meherin,  68  Cal.  478,  479, 
9  Pac.  428;  People  v.  Goldenson, 
76  Cal.  328,  339,  19  Pac.  161;  Peo- 
ple V.  Elliott,  80  Cal.  296,  298,  22 
Pac.  207. 


4  People  V.  Lee,  5  Cal.  353; 
People  V.  Fisher,  6  Cal.  155. 

5  People  ex  rel.  Flagley  v.  Hub- 
bard, 22  Cal.  34,  35;  People  V. 
Weston,  28  Cal.  641;  People  v. 
Sexton,  37  Cal'.  534;  San  Joaquin 
County  V.  Superior  Court,  98  Cal. 
602,  33  Pac.  482;  Lyle  v.  Cass  Cir- 
cuit Judge,  157  Mich.  33,  40,  122 
N.  W.  108;  Davis'  Estate,  In  re, 
11  Mont.  1,  27  Pac.  342;  State  v. 
Smith,  23  Mont.  329,  332,  58  Pac. 
867;  Windfrey  v.  Benton,  25  Okla. 
445,  447,  106  Pac.  854;  State  v. 
Booth,  21  Utah  88,  59  Pac.  553: 
State  ex  rel.  De  Rockin  v.  Allen, 
8  Wash.  168,  35  Pac.  609;  State  ex 
rel.  Scandinavian-American  Bank 
V.  Tallman,  29  Wash.  317,  69  Pac. 
1101;  State  ex  rel.  Miller  v.  Su- 
perior Court,   40   Wash.   555,   55S, 


552 


J 


ell.  XVII.]  ORDER    GRANTING    CHANGE.  §  43^ 

not  appealable,  but  is  properly  brought  before  the  court 
on  an  appeal  from  the  judgment  as  an  intermediate  order 
involving  the  merits  and  necessarily  affecting  the  judg- 
ment.® 

§  434.    Granting   application   for   change.     We 

have  already  seen  that  it  is  error  to  refuse  to  grant  a 
change  in  the  place  of  trial  where  a  proper  sho^\^ng  is 
made.i     But  the  fact  that  the  affidavit  for  a  change  of 
venue  may  be  defective  will  not  render  the  order  changing 
the  venue  a  nullity,  nor  should  the  case  be  dismissed  for 
this  defect.     The  objection  should  be  made  at  the  time^' 
the  petition  for  a  change  is  acted  upon.^  So,  also,  althouglif 
the  affidavit  upon  which  the  application  to  change  the- 
venue  of  an  action  is  made  may  not  show  any  legal  cause, 
for  such  change,  still  if  the  court  grants  the  application,'- 
it  has  acted  judicially  upon  a  matter  within  its  cognizance, 
and  where  it  was  clothed  with  discretion,  and  by  the  order 
the  place  of  trial  becomes  changed,^  and  it  can  not  there- 
after be  ordered  by  mandamus  to  proceed  with  the  trial.-* 
However,  a  court  in  which  an  action  is  commenced,  after 

111  Am.  St.  Rep.  925,  2  L.   R.  A.  6  State  v,  Shaw,  21  Nev    222    29 

(N.  S.)  395,  82  Pac.  877.  Pac.  321. 

In   garnishment  proceeding  ^  gg^    ^^^^^  g  ^33 

superior  court  having  no  power  or  „ 

discretion   to   award   a   change   of  ^^  ^°j!^^^  ^-  ^^^™'^  Executors,  24 
venue,  an  order  entered  directing 

change  of  venue,  mandamus  to  -  P  e  o  p  1  e  ex   rel.   Meninger  v. 

proceed  with  the  trial  is  the  proper  Sexton,  24  Cal.  78. 

remedy.    The  fact  that  an  appeal  4  p  e  o  p  1  e  ex  rel.  Meninger  v. 

may  be  taken  from  the  proceed-  Sexton,  24  Cal.  78,  83;  State  ex  rel. 

ings  in  the  county  to  which  they  Miller  v.  Superior  Court,  40  Wash, 

have  been  transferred  is  an  inade-  ^55,  558,  111  Am.  St.   Rep.  925,  2 

quate  r  e  m  e  d  y.— S  t  a  t  e  ex  rel.  L.   R.  A.   (N.  S.)   395,  82  Pac.  877. 

Wyman    v.    Superior    Court,    40  I^"t  see:    State  ex  rel.  Wyman  v. 

Wash.  443,  111  Am,  St.   Rep.  915,  Superior  Court,  40  Wash.  443,  111 

5  Ann.  Gas.  775,  2  L.  R.  A.  (N.  S.)  Am.  St.  Rep.  915,  5  Ann.  Gas.  775, 

568,  82  Pac.  875.    See  State  ex  rel.  2  L.  R.  A.  (N.  S.)  568,  82  Pac.  875,' 

Scougale  v.   Superior  Court,   55  and  State  ex  rel.  Scougale  v. 

Wash.  328,  133  Am.  St.  Rep.  1030,  Superior  Court,  55  Wash.  328,  133 

104  Pac.  607.  Am.  St.  Rep.  1030,  104  Pac.  607. 

See,  also,  ante,  §  431,  footnote  7.  See,  also,  ante,  §  433,  footnote  5 

U53 


§  435  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

making  an  order  granting  a  change  of  venue,  has  juris- 
diction to  set  aside  the  order  on  the  ground  that  it  was 
inadvertently  made.^  An  order  granting  an  application 
upon  payment  of  certain  specified  costs,  is  an  order  deny- 
ing the  application  unless  such  costs  are  paid;^  but  an 
order  granting  a  change  in  the  place  of  trial  of  an  action 
for  divorce  can  not  be  vacated  for  a  failure  to  pay  attor- 
ney fees  by  the  moving  party."  An  order  changing  the 
place  of  trial  will  be  presumed  to  have  been  properly 
made,  when  the  record  on  appeal  from  the  order  fails  to 
contain  any  papers  identified  as  having  been  used  in  the 
lower  court  on  the  hearing  of  the  motion  to  change.* 

§  435.  Tkansferring  cause  —  In  general.  In  those 
cases  in  which  the  presiding  judge  is  shown  by  the  sup- 
porting affidavits  on  an  application  for  a  change  in  the 
place  of  trial  to  be  disqualified,  the  only  power  or  juris- 
diction the  judge  disqualified  has  is  to  make  and  enter  an 
order  showing  his  disqualification  and  a  transfer  thereof 
as  required  by  the  statute  ;^  an  order  dismissing  the  suit 
is  null  and  void  for  want  of  jurisdiction  to  make  it,-  even 
though  no  objection  is  made  thereto.^  Under  the  provisions 
of  the  California  statute  it  is  made  the  duty  of  a  judge 
before  whom  a  cause  is  pending,  when  he  is  disqualified 
for  any  of  the  causes  or  grounds  specified  in  the  statute^ 
from  sitting  and  acting  in  such  cause,  to  transfer  such 
cause  without  delay^  to  some  other  county  to  be  agreed 

5  Baker  v.  Fireman's  Fund  Ins.  i  See,  ante,  §  395. 

Co.,  73  Cal.  182,  14  Pac.  686.  2  People  ex  rel.  Carrillo  v.  De  la 

6  Armstrong  v.  Superior  Court,  Guerra,  24  Cal.  73;  Burton  v. 
63  Cal.  410;    Estep  v.  Armstrong,      Carrubias,  1  Cal.  Unrep.  209. 

69  Cal.  536,  11  Pac.  132.  3  People  ex  rel.  Carrillo  v.  De  la 

See,  post,  §  436,  footnote  5.  Guerra,  24  Cal.  73,  77.     See  John- 

7  Chase  v.  Superior  Court,  154  son  v.  German  American  Ins.  Co., 
Cal.  789,  795,  99  Pac.  355.  150  Cal.  338,  339,  88  Pac.  986. 

sPardy  v.  Montgomery,  77  Cal.  4  As  to  grounds  of  disqualifica- 

326,   19   Pac.   530;    McAulay  v.  tion  of  judge,  see,  ante,  §§  410-430. 

Truckee    Ice    Co.,    79    Cal.    50,    21  5  Krumdick    v.    Crump,    98    Cal. 

Pac.   434.     See  Woods  v.   Diepen-  117,    119,   32    Pac.   800;    People   v. 

brock,  141  Cal.  55,  74  Pac.  546.  Ebey,  6  Cal.  App.  772,  93  fSiC.  381; 

554 


f!l.  XVII.]  TRANSFER PROCEDURE   ON.  §436 

upon  by  the  parties,  and  in  the  event  of  their  failure  to 
agree,  to  the  nearest  or  most  accessible  court,  where  the 
like  objections  or  cause  for  making  the  order  of  transfer 
do  not  exisf  Any  judgment  of  the  court  to  which  a  cause 
is  thus  transferred  can  not  be  collaterally  attacked  on  the 
ground  that  such  court  was  not  the  nearest  one  to  which 
tlie  cause  might  have  been  transferred.'^  The  determina- 
tion of  what  court  is  the  nearest  to  which  the  transfer 
should  be  made  is  within  the  jurisdiction  of  the  disquali- 
fied judge,  and  the  selection  of  a  county  seat  most  readily 
accessible,  though  not  the  nearest,  whether  or  not  erron- 
eous, will  not  render  the  final  judgment  in  the  cause  void 
and  open  to  collateral  attack.* 

§  436.    Procedure  and  practice  on.    In  California, 

when  an  order  is  made  transferring  an  action  or  proceed- 
ing for  trial,  the  clerk  of  the  court,  or  justice  of  the  peace, 
must  transmit  the  pleadings  and  papers  therein  to  the 
clerk  or  justice  of  the  court  to  which  it  is  transferred. 
The  costs  and  fees  thereof,  and  of  filing  the  papers  anew, 
must  be  paid  by  the  party  at  whose  instance  the  order  was 
made,  when  the  action  or  proceeding  was  originally  com- 
menced in  the  proper  county.  In  all  other  cases  such 
costs  and  fees  are  to  be  paid  by  the  plaintiff.  The  court 
to  which  the  action  or  proceeding  is  transferred  has  and 
exercises  over  the  same  the  like  jurisdiction  as  if  it  had 
been  originally  commenced  therein.^  If  the  defendant 
procures  a  change  of  venue,  the  plaintiff  may  pay  the 
costs  and  transmit  the  papers  to  the  county  fixed  as  the 

State  ex  rel.  Bullion  &  Exchange  the  change  shall  be  made. — See: 

Bank  v.  Mock,  26  Nev.  430,  443,  69  Whitmore,  Ex  parte,  9   Utah  441, 

Pac.  862;  Gamble  v.  District  Court,  35  Pac.  524;  Elliot  v.  Whitmore,  10 

27  Nev.  233,  244,  74  Pac.  530.  Utah  246,  37  Pac.  461. 

<;  Kerr's    Cyc.    Cal.    Code    Civ.  7  Gage  v.  Downey,  3  Cal.  Unrep. 

Proc,  §  398.  7,  19  Pac.  113. 

Utah  statute  (2  Comp.  Laws  s  Gage  v.  Downey,  79   Cal.  155, 

1888,  §3199),  authorizes  the  court  21  Pac.  855. 

to  change  the  place  of  trial  to  the  i  Kerr's    Cyc.    Cal.    Code    C  1  v. 

nearest  court  when  the  parties  do  Proc,  2d  ed.,  §399;    Consolidated 

not  agree  on  the  court  to  which  Supp.  1906-1913,  p.  1432. 

555 


§436 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  i. 


place  of  trial,  and  have  the  case  placed  on  the  calendar 
and  tried. ^  In  some  states,  on  a  motion  to  change  the 
place  of  trial,  the  costs  are  usually  made  to  abide  the 
event  of  the  suit,  whether  the  motion  be  granted  or  de- 
nied.^ But  it  may  be  otherwise  where  the  plaintiff  has 
not  complied  with  a  demand  ;*  e.  g.,  the  payment  of  costs. ° 


2  Brooks  V.  Douglass,  32  C  a  1. 
208. 

3  Gedney  v.  Spelman,  6  Wend. 
(N.  Y.)  525;  Norton  v.  Rich,  20 
Johns.   (N.  Y.)   475. 

4  Hubbard  v.  National  Protection 
Ins.  Co.,  11  How.  Pr.  (N.  Y.)  149. 


See:  Donaldson  v.  Jackson,  9 
Wend.  (N.  Y.)  450;  Purdy  v. 
Warden,  10  Wend.  (N.  Y.)  619. 

5  Estep  V.  Armstrong,  69  Cal. 
536,  11  Pac.  132. 

See,  ante,  §  434,  footnote  6. 


556. 


i 


CHAPTER  XVIII. 

REMOVAL  OF  CAUSE. 

§  437,    In  general. 

§  438.    A  statutory  proceeding. 

§  439.    Restrictions  on  removal — State  and  federaL 

§  440.    Right  of  removal. 

§  441.    Power  of  removal. 

§  442.    Persons  who  may  remove  action. 

§  443.    Time  of  application  for  removal — In  general. 

§  444.    On  ground  of  prejudice  or  local  inHuence. 

§  445.    From  what  court. 

§  446.    To  what  court. 

§  447.    Grounds  of  removal — In  generaL 

§  448.    1.  Diversity  of  citizenship. 

§  449.    2.  Separable  controversy. 

§  450.    3.  Prejudice  or  local  influence. 

§  451.    4.  Denial  of  civil  rights. 

§  452.    5.  Actions  in  which  federal  question  involved. 

§  453.    6.  Actions  against  public  officers,  etc. 

§  454.    Effect  of  change  in  parties  after  removal. 

§  455.    Amount  in  controversy  as  affecting  removal. 
§  456.    Procedure  to  remove — In  general. 

§  457.    1,  Notice  of  petition  and  bond. 

§  458. Purpose  and  sufficiency  of  the  notice. 

§  459.    2.  Petition  for  removal — In  general. 

§460. (1)    Averments  as  to  amount  in  controversy. 

§  461. (2)    Averments  as  to  diversity  of  citizenship. 

§  462. (3)    Averments  as  to  alienage. 

§  463. (4)    Averments  as  to  separable  controversy. 

§  464. (5)    Averments  as  to  prejudice  and  local  influ- 
ence. 

§  465. (6)    Averments  as  to  denial  of  civil  rights. 

§  466. (7)    Averments  as  to  federal  question, 

§  467. Verification  of  petition  for  removal. 

§  468, Amendment  of  petition  for  removal. 

557 


§  437  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

§  469.  3.  Bond  for  removal — Requisites  and  sufficiency  of. 

§  470.  4.  Filing  bond  and  petition — Sufficiency  of  proceed- 
ing. 

§  471. Questions  of  fact — For  federal  court. 

§  472. Questions  of  law — For  state  court. 

§  473.  5.  Filing  certified  copy  of  record  in  federal  court. 

§  474.  6.  Time  to  plead  in  federal  court — Nature  of  plea. 

§  475.  Remand  of  cause — In  general. 

§  476.  On  whose  motion — Court's  own  motion. 

§  477. On  motion  of  party. 

§  478.  Grounds  for  remand — In  general. 

§  479. Causes  remanded  when. 

§  480. Causes  not  remanded  when. 

§  481.  Time  of  remand. 

§  482.  Costs  on  remand. 

§  437.  In  genekal,.  We  have  already  seen^  that  the 
term  "removal  of  cause,"  when  discerningly  and  prop- 
erly used,  has  reference  alone  to  the  change  of  the  court 
as  well  as  of  the  place  of  trial  by  taking  the  case  from  a 
state  court  and  placing  it  in  a  federal  court.  This  is 
purely  a  statutory  proceeding,-  and  until  the  federal 
Judiciary  Act,  otherwise  and  officially  known  as  the  fed- 
eral Judicial  Code,^  went  into  effect,  was  governed  by 
various  acts  of  Congress  passed  at  different  times  from 
1789  to  1888.  The  removal  of  causes  from  a  state  to  a 
federal  court  is  now  governed  by  the  federal  Judicial 
Code,  section  twenty-eight  and  subsequent  sections.  As 
these  sections  are  in  effect  a  codification  of  all  the  sepa- 
rate acts  of  Congress  theretofore  existing,  the  large  body 
of  adjudications  which  grew  up  under  these  separate  and 
superseded  acts  is  still  applicable,  to  a  greater  or  less 
extent,  under  the  Judicial  Code.  It  will  be  impossible  to 
collect  in  this  chapter  all  these  cases  and  the  various 
points  decided  therein,  important  as  the  decisions  are, 

1  See,  ante,  §  390.  generally,  see  4  Fed.  Stats.  Ann., 

2  See,  post,  §438.  2d  ed.,   pp.   800-1063,   5  Id.,  pp.   1- 

3  As   to   federal    judiciary    act      10S9;  23  R.  C.  L.  593. 

558 


Ch,  XVIII.]  REMOVAL — CONFLICT  OP   DECISION".  §  437 

and  valuable  as  such  a  collection  and  analysis  would  be. 
Space,  for  one  thing,  would  not  permit  of  it.  This  work 
lias  been  admirably  and  thoroughly  done  in  the  second 
edition  of  the  Federal  Statutes  Annotated,  to  which  the 
reader  is  referred,  with  the  suggestion  that  no  removal  of 
a  cause  should  be  attempted  without  first  consulting  this 
admirable  work  on  the  point  involved.*  All  that  is  here 
attempted  is  a  general  outline  (1)  of  the  causes  for  or 
grounds  of  removal,  and  (2)  the  procedure  and  practice 
on  removal. 

Conflict  of  decisions  on  many  points  in  the  removal  of 
causes  is  hopeless  in  the  various  districts,  and  not  infre- 
quently in  the  same  district.  It  is  beyond  the  scope  of 
this  treatise  to  attempt  to  analyze  and  discuss  these  cases ; 
but  it  may  be  noted  in  passing  that  the  persistency  of 
contrariety  has  the  effect  to  render  what  is  the  law  upon 
the  removal  of  causes  in  one  district, — and  each  state 
constitutes  a  district  under  the  Federal  Judicial  Code,^ — 
is  not  the  law  upon  identically  the  same  question  under 
the  same  state  of  facts  in  another  district.  And  not  infre- 
(juently  we  find  the  same  state  of  conflict  in  the  districts 
of  the  same  state, — e.  g.,  in  New  York;®  and  in  the  same 
district  what  is  allowed  at  one  time^is  refused  at  another.^ 
For  the  sake  of  ' '  conformity, ' '  a  rule  will  be  enforced  on 
one  occasion,^  and  in  the  same  court,  on  another  occa- 
sion,— before  another  judge,  and  on  a  different  line  of 
''precedents," — the  opposite  doctrine  wall  be  held.^°  Nor 
is  the  vice  confined  to  the  district  courts  and  the  lower 

4  Id.,  vol.  5,  pp.  16-375.  v.  Brown  Alaska  Co.,  148  Fed.  308. 

5  Judicial   Code,    §69,    5   Fed.  ^  Foulk  v.   Gray,   120   Fed.   156; 

Stats.  Ann.,  2d  ed.,  p.  549.  Wirgman  v.  Persons,  126  Fed.  449. 

.T,r-.^    ,.        .     .  ,    r.  9  Doherty  V.  Smith,  233  Fed.  132. 

«Witn    Manufacturers     Com-  ,„  n»«  r    •  r-    j 

10  Differences  of  views  of  judges 

mercial  Co.  v.  Brown  Alaska  Co.,  j^  ^^^  york  is  well  illustrated  by 

148  Fed.  308,  and  Cincinnati.  H.  &  ^^e   case  of  McCabe  v.   Guaranty 

D.   R.   Co.   V.   Orr,   215   Fed.   261.  ^rust  Co.,  243  Fed.  485,  487,  and 

Compare  cases  cited  in  footnotes  Qi.aranty  T  r  u  s  t  Co.  v.  McCabe, 

8  and  9,  this  section.  250    Fed.    699,    in    which    opposite 

T  Manufacturers'  Commercial  Co.  results  were  arrived  at. 

559 


§437 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  T. 


federal  judges,  but  the  judges^*  of  and  the  decisions  of 
the  Federal  Supreme  Court  are  seemingly  in  the  same 
state  of  hopeless  confusion.^^  Among  the  points  on  which 
this  conflict  exists  may  be  instanced,  without  attempting 
to  exhaust  the  list:  Doubt  as  to  jurisdiction  to  retain  the 
cause  should  be  resolved  against  such  jurisdiction,  accord- 
ing to  some  cases,^^  but  the  rule  is  othermse  according  to 
the  number  and  weight  of  decision;^*  removal  may  be 
across  state  line,  according  to  some  decisions, ^^  and  not 
according  to  others;^*'  removal  where  plaintiff  is  an 
alien,^"  although  this  is  denied  ;^^  removal  from  state 
court  where  neither  party  is  a  citizen  of  the  state  of  the 


11  Federal  judges'  conflicting 
views,  expressed  when  sitting  in 
circuit,  are  Illustrated  by  County 
of  Yuba  V.  Pioneer  Gold  Min.  Co., 
32  Fed.  183;  Harold  v.  Iron  Silver 
Min.  Co.,  33  Fed.  529;  Wilson  v. 
Western  Union  Tel.  Co.,  34  Fed. 
561,  and  Burch  v.  Southern  Pac.  R. 
Co.,  139  Fed.  350.  See  Iowa  Lillo- 
vet  Gold  Min.  Co.  v.  Bliss,  144 
Fed.  446. 

12  See,  among  other  cases,  Wis- 
ner,  Ex  parte,  203  U.  S.  449,  51 
L.  Ed.  264,  27  Sup.  Ct.  Rep.  150; 
Moore,  Ex  parte,  209  U.  S.  490,  52 
L.  Ed.  904,  28  Sup.  Ct.  Rep.  585, 
706;  Western  Loan  &  Sav.  Co.  v. 
Butte  &  Boston  Consol.  Min.  Co., 
210  U.  S.  368,  52  L.  Ed.  1101,  28 
Sup.  Ct.  Rep.  720;  Winn,  Ex  parte, 
213  U.  S.  458,  468,  53  L.  Ed.  873, 
877,  29  Sup.  Ct.  Rep.  515;  Tobin, 
Ex  parte,  214  U.  S.  505,  53  L.  Ed. 
1061,  29  Sup.  Ct.  Rep.  702;  Kris- 
tianson.  Ex  parte,  214  U.  S.  505, 
53  L.  Ed.  1061,  29  Sup.  Ct.  Rep. 
704;  Nicola,  Ex  parte,  218  U.  S. 
668,  54  L.  Ed.  1203,  31  Sup.  Ct. 
Rep.  228;  Harding,  Ex  parte,  219 
U.  S.  363,  379,  55  L.  Ed.  252,  258, 
31  Sup.  Ct.  Rep.  324;  Park  Square 
Automobile  Station,  Ex  parte,  244 


U.  S.  412,  416,  61  L.  Ed.  1231,  37 
Sup.  Ct.  Rep.  732.  But  see  Fed. 
Stats.  Ann.,  2d  ed.,  p.  411  (5). 

13  Kamemicky  v.  Catterall  Print- 
ing Co.,  188  Fed.  400;  Odhner  v. 
Northern  Pac.  R.  Co.,  188  Fed.  507. 

14  Fritzlen  v.  Boatmen's  Bank. 
212  U.  S.  364,  371,  373,  53  L.  Ed. 
551,  556,  557,  29  Sup.  Ct.  Rep.  366; 
Boatmen's  Bank  v.  Fritzlen,  135 
Fed.  650,  653;  certiorari  denied, 
198  U.  S.  586,  49  L.  Ed.  1174,  25 
Sup.  Ct.  Rep.  803;  Drainage  Dlst. 
V.  Chicago,  M.  &  St.  P.  R.  Co.,  198 
Fed.  253;  Strother  v.  Union  Pac. 
R.  Co.,  220  Fed.  731;  Mississippi 
R.  Co.,  Ex  parte,  241  Fed.  194,  201. 

15  Park  Square  Automobile  Sta- 
tion, Ex  parte,  244  U.  S.  412,  61 
L.  Ed.  1231,  37  Sup.  Ct.  Rep.  732; 
Mattison  v.  Boston  &  M.  R.  Co., 
205  Fed.  821,  824;  Park  Square 
Automobile  Station  v.  American 
Locomotive  Co.,  222  Fed.  979,  991. 

16  New  York  Coal  Co.  v.  Sundy 
Creek  Coal  Co.,  230  Fed.  295. 

17  Bagenas  v.  Southern  Pac.  Co., 
180  Fed.  887;  Louisville  &  N.  R. 
Co.  V.  Western  Union  Tel.  Co.,  218 
Fed.  91,  104. 

isSagara  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  189  Fed.  220. 


5G0 


<:h.  XVIII.]  REMOVAL    STATUTORY    PROCEEDING. 


§438 


forum/^  altbougli  some  decisions  hold  that  the  cause  is 
not  removable,  even  though  within  the  apparent  category 
of  removable  causes;-*^  removable  for  separable  con- 
troversy by  resident  of  state  of  forum,  affirmed  in  some 
decisions-^  and  denied  in  others  ;-^  removal  by  nonresident 
of  district  where  adversary  also  a  nonresident  citizen, 
held  by  some-^  and  denied  by  other  decisions;-^  where 
adversary  an  alien,  same  conflict  of  decision  pro--^  and 
con^®  prevails ;  removal  by  single  nonresident  defendant 
where  the  controversy  is  not  a  separable  one  as  to  him, 
has  been  held-'  and  denied,-^  and  the  like.  In  reading  and 
using  this  chapter,  please  bear  this  hopeless  conflict  and 
confusion  in  mind. 

§  438.  A  STATUTORY  PROCEEDING.  The  law  of  the  re- 
moval of  cause  from  a  state  court  to  a  federal  court  is 
wholly  statutory,^  although  the  express  words  of  the  stat- 


19  Venal  v.  Continental  Const. 
Imp.  Co.,  34  Fed.  228;  Whitworth 
V.  Illinois  Cent.  R.  Co.,  107  Fed. 
557. 

20Foulk  V.  Gray,  120  Fed.  156; 
O'Neill  V.  Birdseye,  244  Fed.  254; 
Guaranty  Trust  Co.  v.  McCabe, 
250  Fed.  699. 

21  National  Bank  of  Battle 
Creek  v.  Howard,  54  Misc.  (N.  Y.) 
81,  103  N.  Y.  Supp.  814;  Stans- 
brough  V.  Cook,  38  Fed.  369.  371. 

22  Whitaker  v.  Condon,  217  Fed. 
139;  Thurber  v.  Miller,  67  Fed. 
371;  Wrightsville  Hardware  Co.  v. 
Hardware  &  Woodenware  Mfg.  Co., 
180  Fed.  586. 

23  Barney  v.  Latham,  103  U.  S. 
205,  26  L.  Ed.  514. 

This  follows  from  rule  laid  down 
in  cases  cited  in  footnote  19,  this 
section. 

24  Foulk  V.  Gray,   120  Fed.   156. 

25  Venal  v.  Continental  Const. 
&   Imp.    Co.,    34   Fed.    228;    Louis- 


ville &  N.  R.  Co.  V.  Western  Union 
Tel.  Co.,  218  Fed.  91,  104. 

26  Jackson  v.  Kenefick,  233  Fed. 
130,  133. 

27  Garner  v.  Second  Nat.  Bank, 
66  Fed.  369;  Boston  Safe-Deposit 
Co.  V.  Mackay,  70  Fed.  801;  Hunter 
V.  Conrad,  85  Fed.  803;  Munford 
Rubber  Tire  Co.  v.  Consolidated 
Rubber  Tire  Co.,  139  Fed.  496. 

28  O'Neill  V.  Birdseye,  244  Fed. 
254.  See  Harnick  v,  Harnick,  153 
U.  S.  192,  197,  38  L.  Ed.  685,  14 
Sup.  Ct.  Rep.  835;  Chicago,  R.  I. 
&  P.  R.  Co.  V.  Martin,  178  U.  S. 
245,  44  L.  Ed.  1055,  20  Sup.  Ct. 
Rep.  854. 

1  Goldey  v.  Morning  News,  15G 
U.  S.  518,  39  L.  Ed.  517,  15  Sup. 
Ct.  Rep.  559. 

Constitutional  source  of  right  of 
removal  has  been  advanced,  it 
being  claimed  that  the  right  exists 
under  U.  S.  Const.,  art.  Ill,  §  2, 
and  can  not  be  abridged  by  con- 


I  Code  PI.  and  Pr. — 36 


561 


§438 


CODE  PLEADING   AND   PRACTICE. 


[Ft.  I, 


ute  cover  only  a  small  part  of  the  cases  arising  in  actual 
practice ;  those  not  expressly  provided  for  being  included 
by  construction.-  The  proper  rules  governing  removals 
generally,  and  the  right  to  a  removal  in  a  particular  case, 
are  to  be  deduced  from  the  intent  and  the  history  of  the 
legislation.^  Judge  McPherson  has  well  said  that  there 
is  no  phase  of  American  jurisprudence  with  so  many  re- 
finements and  subtleties,  as  are  to  be  found  in  that  which 
relates  to  the  removal  of  causes  from  a  state  to  a  federal 


gress;  but  such  a  view  has  not 
met  with  favor  from  the  courts. — 
Chilley,  In  re,  58  Fed.  977.  See: 
Bank  of  United  States  v.  North- 
umberland Bank,  4  C  o  m.  333,  4 
Wash.,  C.  C,  108,  Fed.  Cas.  No. 
931;  Bank  of  United  States  v. 
Roberts,  4  Com.  323,  Fed.  Cas.  No. 
934;  Cabrera,  Ex  parte,  1  Wash., 
C.  C,  432,  Fed.  Cas.  No.  2278; 
United  States  v.  Haynes,  29  Fed. 
696;  Turner  v.  Bank  of  North 
America,  4  U.  S.  (4  Ball.)  8,  1 
L.  Ed,  718;  Mclntire  v.  Wood,  11 
U.  S.  (7  Cr.)  504,  3  L.  Ed.  420; 
Kendall  v.  United  States,  37  U.  S. 
(12  Pet.)  524,  9  L.  Ed.  1181;  Cary 
V.  Curtis,  44  U.  S.  (3  How.)  236, 
11  L.  Ed.  576;  Sheldon  v.  Sill,  49 
U.  S.  (8  How.)  441,  12  L.  Ed.  1147. 
Inferior  federal  courts  derive 
power  from  congress,  not  from 
the  constitution. — Turner  v.  Bank 
of  North  America,  4  U.  S.  (4  Ball.) 
8,  1  L.  Ed.  718;  Stephenson  v.  Fain, 
195  U.  S.  167,  49  L.  Ed.  143,  25 
Sup.  Ct.  Rep.  6.  See:  Roberts  v. 
Knight,  89  Mass.  (7  Allen)  451; 
North  Carolina  v.  Trustees  of 
University,  65  N.  C.  714,  718,  1 
Hughes  133,  137,  Fed.  Cas.  No. 
10318;  Barry,  In  re,  1  Br.un.  Cal. 
Cas.  533,  42  Fed.  113,  Fed.  Cas. 
No.  1059,  note  136  U.  S.  609,  615, 


34  L.  Ed.  508,  509;  10  Sup.  Ct. 
Rep.  850;  Harrison  v.  Hadley,  2 
Dill.  229,  234,  7  Am.  L.  Rev.  560, 
Fed.  Cas.  No.  6137;  United  States 
V.  New  Bedford  Bridge,  1  Woodb. 
&  M.  401,  431-2,  435,  438,  442,  455, 
492,  Fed.  Cas.  No.  15867;  McNutt 
V.  Bland,  43  U.  S.  (2  How.)  27,  11 
L.  Ed.  166;  Sheldon  v.  Sill,  49 
U.  S.  (8  How.)  441,  12  L.  Ed.  1147; 
Sewing  Machine  Companies,  In  re, 
85  U.  S.  (18  Wall.)  553,  577,  21 
L,  Ed.  914,  919;  Burrus,  In  re,  136 
U.  S.  536,  34  L.  Ed.  500,  10  Su:;. 
Ct.  Rep.   850. 

2  Eddy  V.  Chicago  &  N.  W.  R. 
Co.,   226   Fed.   120. 

Diversity  of  citizensiiip,  dis- 
cussed as  a  cause  of  removal,  post, 
§  448,  has  been  said  to  present  150 
different  cases  of  diverse  citizen- 
ship and  alienage,  very  few  of 
which  are  covered  by  the  statute, 
the  balance  being  included  by 
construction. — Eddy  v.  Chicago  & 
N.  W.  R.  Co.,  226  Fed.  120. 

3  Eddy  V.  Chicago  &  N.  W.  R. 
Co.,  226  Fed.   120. 

Restriction  of  jurisdiction  of 
federal  circuit  courts. — See  author- 
ities discussed  and  cited  in  1  Fed. 
Stats.Ann.,  2d  ed.,  p.  41,  §27;  5 
Id.,  p.  30,  par.  5. 


562 


ch.  XVIII.] 


RESTRICTIONS   ON   REMOVAL,. 


§439 


court.^  It  is  the  pro\dnce  of  the  federal  courts  to  construe 
the  statute  conferring  the  right  to  remove  a  cause  from 
the  state  to  a  federal  court,  and  these  constructions,  when 
authoritatively  made,  are  binding  upon  the  state  courts,'^ 
the  supreme  court  of  the  United  States  being  the  final 
arbiter,^  A  suit  commenced  in  the  state  court  must  re- 
main there  until  it  is  plainly  shown  to  be  under  the  pro- 
vision of  the  federal  statute  as  to  the  transfer  of  causes, 
or  is  within  the  well-established  rules  of  construction  or 
interpretation  thereof.'  Neither  the  acquiescence  of  the 
parties,  nor  the  action  of  the  state  court,  can  enlarge  tlie 
statutory  powers  of  a  federal  court  and  confer  jurisdic- 
tion where  none  exists  by  law.* 

<§>  439.  Restrictions  on  removal, — State  and  fed- 
eral,. Any  restriction  upon  the  right  to  remove  a  cause 
from  a  state  to  a  federal  court,  imposed  by  a  state  legis- 
lature is  unconstitutional,^ — e.  g.  revocation  of  license  of 


4  Hagula  V.  Mississippi  River 
Power  Co.,  202   Fed.  771. 

In  this  connection  see  the  dis- 
cussions and  authorities  cited  in 
Myers  v.  Chicago  &  N.  W.  R.  Co., 
118  Iowa  312,  91  N.  W.  1076;  Kirby 
V.  Chicago  &  N.  W.  R.  Co.,  106 
Fed.  551;  Mason  City  &  Ft.  D.  R. 
Co.  V.  Boynton,  204  U.  S.  570,  51 
L.  Ed.  629,  27  Sup.  Ct.  Rep.  321; 
Wisner,  Ex  parte,  203  U.  S.  449, 
51  L.  Ed.  264,  27  Sup.  Ct.  Rep.  150; 
criticised  and  overruled  in  part  in 
Moore,  In  re,  209  U.  S.  490,  52 
L.  Ed.  904,  14  Ann.  Gas.  1164,  28 
Sup.  Ct.  Rep.  585,  706;  Winn,  In 
re,  213  U.  S.  458,  53  L.  Ed.  873,  29 
Sup.  Ct.  Rep.  515;  Harding,  Ex 
parte,  219  U.  S.  363,  55  L.  Ed.  252, 
37  L.  R.  A.  (N.  S.)  392,  31  Sup.  Ct. 
Rep.  324. 

5  Jackson  v.  Alabama  Great  So. 
R.  Co.,  58  Miss.  684. 

«  Landers  v.  Tracy,  171  Ky.  657, 
188  S.  W.  763;  Illinois  Cent.  R.  Co. 


V.  Sheegog,  177  Fed.  756;  South- 
ern R.  Co.  V.  Allison,  190  U.  S. 
326,  47  L.  Ed.  1078,  23  Sup.  Ct. 
Rep.  713;  Mason  City  &  F.  D.  R. 
Co.  V.  Boynton,  204  U.  S.  570,  51 
L.  Ed.  629,  27  Sup.  Ct.  Rep.  321; 
Dunn,  In  re  Matter  of,  212  U.  S. 
374,  53  L.  Ed.  558,  29  Sup.  Ct.  Rep. 
299. 

7  See  Fidelity  Trust  Co.  v.  Gill 
Car  Co.,  25  Fed.  737;  Martin  v. 
Carter,  48  Fed.  596;  Johnson  v. 
Wells,  91  Fed.  3;  Phoenix  Ins.  Co. 
v.  Pechner,  95  U.  S.  183,  24  L.  Ed. 
427;  Little  York  Gold  Washing  & 
Water  Co.  v.  Keyes,  96  U.  S.  199, 
24  L.  Ed.  656;  Kentucky  v.  Powers, 
201  U.  S.  1,  50  L.  Ed.  633,  5  Ann. 
Gas.  692,  26  Sup.  Ct.  Rep.  387,  re- 
versing 139  Fed.  452. 

8  Willard  v.  Chicago,  B.  &  Q.  R. 
Co.,  91  C.  C.  A.  215,  165  Fed.  181. 

1  Donald  v.  Philadelphia  &  Read- 
ing Coal  &  Iron  Co.,  241  U.  S.  239, 
60   L.   Ed.   1027,  36   Sup.   Ct.  Rep. 


563 


§439 


CODE   PLEADING   AND    PUACTICE. 


[Ft.   1, 


foreign  corporation  to  do  business  in  the  state  on  its  re- 
moval of  a  suit  brought  against  it  from  the  state  to  a 
federal  court,- — and  does  not  prevent  a  removal."  But 
Congress  may  provide  for  the  removal  of  one  class  of 
cases  because  of  local  prejudice  and  undue  influence  pre- 
venting a  fair  trial  in  the  state  courts,  to  the  exclusion  of 
other  cases  similarly  situated.'* 

Common  carriers'  liability  cases,  to  their  employees, 
are  by  express  provision  excepted  from  the  operatioii  of 
the  statute  providing  for  removal,  when  the  action  is 
brought  in  a  state  court  of  competent  jurisdiction.^ 


563,  affirming  Western  Union  Tel. 
Co.  V.  Frear,  216  Fed.  199.  See 
Hess  V.  Reynolds,  113  U.  S.  73,  28 
L.  Ed.  927,  5  Sup.  Ct.  Rep.  577; 
Southern  Pac.  Co.  v.  Denton,  146 
U.  S.  202,  36  L.  Ed.  493,  13  Sup.  Ct. 
Rep.  44;  Regan  v.  Farmers'  Loan 
&  T.  Co.,  154  U.  S.  362,  391,  38 
L.  Ed.  1014,  14  Sup.  Ct.  Rep.  1047, 
4  Inter.  Com.  Rep.  560;  St.  Louis 
&  S.  F.  R.  Co.  V.  James,  161  U.  S. 
545,  40  L.  Ed.  802,  16  Sup.  Ct.  Rep. 
621;  Southern  R.  Co.  v.  Allison, 
190  U.  S.  326,  47  L.  Ed.  1078,  23 
Sup.  Ct.  Rep.  713;  Courtney  v. 
Pradt,  196  U.  S.  89,  49  L.  Ed.  398, 
25  Sup.  Ct.  Rep.  208;  Madisonville 
Traction  Co.  v.  St.  Bernard  Min. 
Co.,  196  U.  S.  239,  49  L.  Ed.  462, 
467,  25  Sup.  Ct.  Rep.  251;  Young, 
Ex  parte,  209  U.  S.  123,  52  L.  Ed. 
714,  14  Ann.  Cas.  764,  13  L.  R.  A. 
(N.  S.)  932,  28  Sup.  Ct.  Rep.  441; 
Herndon  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  218  U.  S.  135,  54  L.  Ed.  907. 
80  Sup.  Ct.  Rep.  633;  Harrison  v. 
St.  Louis  &  S.  F.  R.  Co.,  232  U.  S. 
318,  58  L.  Ed.  621,  L.  R.  A.  1915F, 
1187,  34  Sup.  Ct.  Rep.  333. 

2  See  Home  Ins.  Co.  v.  Morse,  87 
U.  S.  (20  Wall.)  445,  22  L.  Ed.  365; 
Harrison  v.  St.  Louis  &   S.  F.  R. 


Co.,  232  U.  S.  318.  58  L.  Ed.  621, 
L.  R.  A.  1915F,  1187,  34  Sup.  Ct. 
Rep.  333,  affirming  171  Fed.  4SU; 
Donald  v.  Philadelphia  &  Reading 
Coal  &  Iron  Co.,  241  U.  S.  239,  60 
L.  Ed.  1027,  36  Sup.  Ct.  Rep.  563. 

A  contrary  view  has  also  been 
announced,  holding  that  a  state 
legislature  has  the  right  to  pro- 
vide for  the  forfeiture  of  the  li- 
cense of  a  foreign  company  to  do 
business  in  the  state  upon  its  re- 
moval of  a  suit  brought  against  it 
from  the  state  to  a  federal  court. 
— Security  Mut.  Life  Ins.  Co.  v. 
Prewitt,  202  U.  S.  246,  50  L.  Ed. 
1013,  6  Ann.  Cas.  317,  26  Sup.  Ct. 
Rep.  619. 

But  that  case  is  criticised  as 
"extremely  narrow"  in  the  cases 
above  cited.  See  discussion  in  5 
Fed.  Stats.  Ann.,  2d  ed.,  pp.  35 
et  seq. 

3  Judson  V.  Knights  of  the  Mac- 
cabees of  the  World,  220  Fed.  1004. 
See  Barrow  v.  Hunton,  99  U.  S.  80, 
25  L.  Ed.  407. 

4  Lombardo  v.  Boston  &  M.  R. 
Co.,  223  Fed.  427. 

5  Federal  Judicial  Code,  §  28, 
second  "proviso";  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  17. 


564 


Ch.  XVIII.]  RIGHT   OF   REMOVAL.  §  440 

Employers'  Liability  Act  cases,  under  the  federal  stat- 
ute, are  made  unremovable  by  special  provision,*'  and  this 
provision  has  been  held  to  be  constitutionaL"^  But  it  has 
been  held  that  when  in  the  complaint,  for  the  same  injury, 
there  are  counts  under  the  federal  Employers'  Liability 
Act,  under  the  common  law,  and  under  the  state  statute, 
the  action  is  removable  from  the  state  to  a  federal  court.^ 
In  an  action  against  a  railroad  alleging  that  the  company 
was  engaged  in  interstate  commerce,  on  an  application 
for  removal  of  the  cause  on  the  ground  that  the  allegation 
that  the  defendant  was  engaged  in  interstate  commerce 
was  fraudulently  made,  the  state  court  may  try  the  ques- 
tion of  the  fraudulent  allegation  of  jurisdictional  facts." 

§  440.  Right  of  eemoval.  We  have  already  seen  that 
the  removal  of  a  cause  from  a  state  to  a  federal  court  is 
a  purely  statutory  proceeding^  which  is  subject  to  re- 
strictions by  act  of  Congress,-  notwithstanding  the  fact 
that  the  constitution  of  the  United  States  secures  to  de- 
fendants who  are  citizens  of  another  state  than  the  one 
in  which  an  action  at  law  or  a  suit  in  equity  is  brought  an 
absolute  right  to  remove  the  cause  from  the  state  court 

Old.,  third  "proviso";    also  fed-  7  See  Kansas  City   Southern  R. 

era]  Employers'  Liability  Act,  §  6.  Co.  v.  Cook,  100  Ark.  467,  140  S.  W. 

See  Southern  R.  Co.  v.  Puckett,  16  579;  Fish  v.  Chicago,  R.  I.  &  P.  R. 

Ga.  App.  551,  85  S.  E.  800;   Jones  Co.,  263  Mo.  106,  Ann.  Cas.  191611. 

V.   Kansas   City    Southern   R.   Co.,  147,  172  S.  W.  340;   McChesney  v. 

137  La.  178,  68  So.  401;   Moore  v.  Illinois  Cent.  R.  Co.,  197  Fed.  85; 

St.  Joseph  &  G.  I.  R.  Co.,  268  Mo.  Kelly  v.  Chesapeake  &  O.  R.  Co.. 

31,  186  S.  W.  1035;  Texas  &  P.  R.  201  Fed.  602;   Teel  v.  Chesapeake 

Co.  V.  Rasmussen  (Tex.  Civ.  App.),  &  O.  R.  Co.,  123  C.  C.  A.  240,  204 

181  S.  W.  212;  Texas  &  P.  R.  Co.  Fed.  918,  47  L.  R.  A.   (N.  S.)    21; 

V.    Sherer    (Tex.    Civ.    App.),    183  Gibson  v.  Ballingham  &  N.  R.  Co., 

S.  W.  404;  Lombardo  v.  Boston  &  213   Fed.   4SS;    Gaines  v.  Fuentes, 

M.  R.   Co.,   223   Fed.  427;    Peek  v.  92  U.  S.  10,  17-18,  23  L.  Ed.  524. 

Boston  &  M.  R.  Co.,  223  Fed.  448;  8  Flas  v.  Illinois  Cent.  R.  Co.,  229 

Kansas    City    Southern   R.    Co.    v.  Fed.  319. 

Leslie,   238   U.    S.    539,    59    L.    Ed.  9  Chesapeake    &    O.    R.    Co.    v. 

1478,  35  Sup.  Ct.  Rep.  844,  revers-  Shaw,  168  Ky.  537,  182  S.  W.  653. 

ing  112  Ark.  305,  Ann.  Cas.  1915B,  i  See,  ante,  §  438. 

834,  167  S.  W.  83.  2  See,  ante.  §  439. 

565 


§440 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  I, 


into  a  federal  court,  upon  compliance  with  the  terms  of 
the  statute  providing  for  the  removal  of  causes  upon  such 
a  ground/''  whether  or  not  the  action  or  suit,  as  an  original 
proceeding,  could  have  been  maintained  in  the  federal 
court  to  Avhich  it  is  sought  to  be  removed,^  except  in 
those  cases  in  which  the  amount  in  controversy  is  below 
the  limit  of  the  jurisdiction  of  the  federal  court.-^  The 
right  of  removal  is  restricted  as  to  the  parties  who  can 
exercise  it,  as  to  the  classes  of  actions  in  which  it  may  be 
exercised,  and  as  to  the  time  at  which  an  election  to  exer- 
cise the  privilege  must  be  made.^  The  jurisdictional 
amount  is  raised  from  five  hundred  dollars  to  two  thou- 
sand dollars.  So,  the  right  of  removal  is  limited  to  the 
defendant  or  defendants  in  the  suit;  but  the  language 
should  be  construed,  in  respect  to  such  defendants,  as  it 
was  prior  to  the  enactment  of  the  federal  Judicial  Code." 
The  right  of  a  citizen  to  remove  a  cause  into  a  federal 
court  is  not  a  vested  right  of  property.  The  rules  as  to 
statutory  construction  in  those  cases  in  which  vested 
rights  are  involved  do  not  apply  when  the  jurisdiction  of 
a  federal  court  to  entertain  a  removal  cause  has  been 
cut  off  by  an  act  of  Congress.^  The  right  of  removal  is 
restricted  by  the  federal  Judicial  Code''  to  * '  any  suit  of  a 
civil  nature,  at  law  or  in  equity,"^*'  and  it  is  not  sufficient 
to  confer  the  right  of  removal  that  the  cause  arises  under 


3  See  Home  Ins.  Co.  v.  Morse, 
87  U.  S.  (20  Wall.)  445,  22  L.  Ed. 
365. 

See,  also,  authorities,  cited  5 
Dig.  U.  S.  Reps.  (Co.-ops.  ed.),  p. 
5056,  par.  9. 

4  Kern  v.  Huidekoper,  103  U.  S. 
485,  26  L.  Ed.  354.  See  Baltimore 
&  O.  R.  Co.  V.  Gary,  28  Ohio  St. 
216. 

^  As  to  amount  in  controversy 
as  affecting  the  right  to  remove 
the  cause,  see,  post,  §  455. 

<;  See  Woolf  v.  Chisholm,  30  Fed. 
881;  Gregory  v.  Pike,  67  Fed.  837. 


See  full  provision  in  federal  Ju- 
dicial Code,  §  28,  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  16. 

7  See  New  York  Construction 
Co.  V.  Simons,  53  Fed.  1. 

s  Manley  v.  Onley,  23  Fed.  708. 

Matter  fully  discussed,  ante, 
§439. 

9  §  28,  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  16. 

10  See  Ferguson  v.  Ross,  38  Fed. 
161;  Texas  v.  Day  Land  &  Cattle 
Co.,  41  Fed.  228;  Brisenden  v. 
Chamberlain,  53  Fed.  307. 


566 


Ch.  XVIII.]  RIGHT    OF    REMOVAL.  §  440 

the  constitution  and  laws  of  the  United  States,  or  that  it 
is  between  citizens  of  different  states ;  it  must  be  a  * '  suit 
of  a  civil  nature,  at  law  or  in  equity,  "^^  and  does  not  in- 
clude an  action  to  enforce  a  criminal,  or  a  quasi-criminal 
statute  of  the  state,  or  to  recover  a  penalty  thereunder, ^- 
but  does  include  an  action  to  recover  indemnity  for  a 
civil  injury,  although  the  statute  punishes  the  act  which 
is  the  cause  of  the  injury,  and  the  basis  of  the  suit,  as  a 
crime.^^  It  is  not  the  form  but  the  nature  of  the  action 
which  determines  whether  it  is  removable  or  not  remov- 
able.^^ Thus,  there  has  been  held  to  be  within  the  removal 
statute  an  action  or  proceeding  to  secure  alimony  awarded 
under  a  decree  of  a  state  court,^^  or  for  damages  for  caus- 
ing a  wrongful  levy  of  an  execution  to  be  made  by  a 
United  States  marshal  upon  property  of  the  plaintiff  in 
a  cause  arising  under  the  laws  of  the  United  States, ^^  or 
for  damages  for  causing  wrongful  death  ;i^  for  the  estab- 
lishment of  a  drain  under  a  state  statute,  after  the  filing 
of  the  report  of  the  commissioners  in  the  state  court  and 
the  presentation  and  filing  of  a  remonstrance  thereto  ;^^ 
in  proceedings  under  the  power  of  eminent  domain  for 
the  appointment  of  appraisers  to  estimate  the  daraage^^ 

11  Kurtz  V.  Moffitt,  115  U.  S.  487,  Co.,  37  Fed.  497;  Texas  v.  Daj' 
29  L.  Ed.  458,  6  Sup.  Ct.  Rep.  148.  Land   &   Cattle   Co.,    41   Fed.    228, 

12  See,  among  other  cases,  Iowa  230;  Day  v.  Chicago,  M.  &  St.  P. 
V.  Chicago,  B.  &  Q.  R.  Co.,  37  Fed.  R.  Co.,  45  Fed.  82,  84;  Indiana  v. 
497,  503;  Ferguson  v.  Ross,  38  Alleghany  Oil  Co.,  85  Fed.  873: 
Fed.  161;  United  States  v.  Mexi-  Ames  v.  Kansas,  111  U.  S.  449,  28 
can  Nat.  R.  Co.,  40  Fed.  769;  Texas  L.  Ed.  482,  4  Sup.  Ct.  Rep.  437; 
V.  Day  Land  &  Cattle  Co.,  41  Fed.  Wisconsin  v.  Pelican  Ins.  Co.,  127 
228,  49  Fed.  593;  United  States  v.  U.  S.  265.  32  L.  Ed.  239,  8  Sup.  Ct. 
Whitcomb   Metallic  Bedstead  Co.,  Rep.  1370. 

45  Fed.  89;    Indiana  v.  Alleghany  is  Israel  v.  Israel,  130  Fed.  237. 

Oil  Co.,  85  Fed.  870;   Montgomery  i«  Hurst  v.  Cobb.  61  Fed.  1. 

V.  Postal  Tel.  Cable  Co..  218  Fed.  it  Malloy   v.    American    Hide    & 

471.  Leather  Co.,  148  Fed.  482. 

13  Robertson  v.  Kittell,  64  N.  II.  is  Jarnecke  Ditch,  In  re,  Gl)  Fed. 
430,  14  Atl.  78;  Buford  v.  Strother,  161. 

3  McCr.  253,  10  Fed.  406.  i'.>  Hartford   &   C.   W.  R.   Co.   v, 

n  Iowa  V.  Chicago,  B.  &  Q.  R.      Montague,  94  Fed.  227. 

567 


§440 


CODE   PLEADING   AND   PRACTICE. 


[Ft.  I, 


or  to  determine  the  amount  of  compensation  to  be  paid 
to  a  landowner  whose  property  is  taken  or  injured,-**  but 
does  not  include  an  application  by  a  railroad  to  the  rail- 
road commission  for  peimission  to  take  land;^^  forcible 
entry  and  detainer  proceedings  ;-2  prize  proceedings 
against  an  inhabitant  of  the  United  States  ;2^  quo  war- 
ranto proceedings;-^  suit  to  compel  the  receiver  of  a 
national  bank  to  pay  to  the  complainant  certain  assets  of 
the  bank  in  his  hands  ;^^  and  a  suit  against  a  receiver  ap- 
pointed by  a  federal  court  may  be  removed  from  a  state  to 
a  federal  court  on  that  ground  alone.^^  Among  the  actions 
and  proceedings  not  within  the  removal  statute  are  con- 
tempt proceedings ;-'''  proceedings  to  establish  and  pro- 
bate a  wilP^  or  to  determine  whether  decedent's  property 
is  community  or  separate  property,-^ — although  an  action 

20  Patterson  v.  Mississippi  & 
Railroad  Boom  Co.,  3  Dill.  465, 
Fed.  Cas.  No.  10829;  Delafield,  In 
re,  109  Fed.  577. 

21  New  York,  N.  H.  &  H.  R.  Co. 
V.  Cockcroft,  46  Fed.  881. 

22  Wheeler  v.  Bates,  6  Biss.  88, 
Fed.  Cas.  No.  17492. 

2a  Graham,  Ex  parte,  3  Wash. 
C.  C.  456,  Fed  Cas.  No.  5657. 

24  Illinois  V.  Illinois  Cent.  R.  Co., 
33  Ft  J.  721;  Ames  v.  Kansas,  111 
U.  S.  449,  28  L.  Ed.  482,  4  Sup.  Ct. 
Rep.  437. 

25  Sowles  V.  First  Nat.  Bank,  46 
Fed.  513;  Hot  Springs  Indepen- 
dent School  Dist.  V.  First  Nat. 
Bank,  61  Fed.  417. 

26  Jewett  V.  Whitcomb,  69  Fed. 
417;  Carpenter  v.  Northern  Pac. 
R.  Co.,  75  Fed.  850;  Texas  &  P.  R. 
Co.  V.  Cox,  145  U.  S.  593,  603,  36 
L.  Ed.  829,  832-3,  12  Sup.  Ct.  Rep. 
905. 

2T  Williams  Mower  &  Reaper 
Co.  V.  Raynor,  7  Bis.  245,  Fed.  Cas. 
No.   17748;    McLeod   v.   Duncan,   5 


McL.  342,  Fed.  Cas.  No.  8898;  Kirk 
V.  Milwaukee  Dust  Collector  Co., 
26  Fed.  501. 

2S  PoweU  V.  Watkins,  172  N.  C. 
244,  90  S.  E.  207;  Frazer,  In  re,  18 
Alb.  L.  J.  353,  7  Cent.  L.  J.  227, 
Fed.  Cas.  No.  5068;  Reed  v.  Reed, 
31  Fed.  49;  Cilley,  In  re,  58  Fed. 
977;  Cilley  v.  Patten,  62  Fed.  498; 
Foley,  In  re,  76  Fed.  390;  Aspin- 
wall,  In  re,  83  Fed.  851;  Wahl  v. 
Franz,  40  C.  C.  A.  638,  100  Fed. 
680,  49  L.  R.  A.  62;  Broderick's 
Will,  Case  of,  88  U.  S.  (21  Wall.) 
503,  sub  nom.  Kieley  v.  McGlynn, 
22  L.  Ed.  599. 

Proceeding  inter  partes,  and  not 
in  rem,  under  the  state  statute,  to 
establish  will  conclusively  as  muni- 
ment of  title,  it  is  a  suit  of  a  civil 
nature. — Broadhead  v.  Shoemaker, 
44  Fed.  518. 

Reason  for  the  rule  is  explained 
in  Underground  Electric  R.  Co.  v. 
Owsley,  99  C.  C.  A.  500,  176  Fed. 
26. 

29  Foley,  In  re,  80  Fed.  949. 


568 


•h.  XVIII.] 


POWER   OF    REMOVAL, 


§441 


to  construe""'  or  contest  a  will,^^  where  the  state  statute 
authorizes  such  an  action  as  a  distinct  proceeding  as  dis- 
tinguished from  a  proceeding  to  establish  and  probate  a 
will,  or  contest  of  distribution,^-  or  to  establish  a  lost 
will,22  or  a  claim  against  decedent's  estate,^^  or  to  estab- 
lish heirship,^^  are  suits  within  the  removal  statute.  But 
libel  in  personam  in  admiralty  is  not  within  the  removal 
statute,^^  or  scire  facias  proceedings,^^  and  the  like.^'' 

§  441.  Power  of  Removal.  The  power  to  remove  a 
cause  from  a  state  to  a  federal  court  is  a  purely  statutory 
one,^  and  must  be  exercised  in  accordance  with  and  only 
when  a  cause  therefor  is  made  out  under  the  removal  stat- 
ute. The  power  to  order  the  removal  resides,  in  the  first 
instance,  in  the  state  court  in  which  the  action  is  pending, 
and  is  confined  to  a  suit  of  a  civil  nature,  at  law  or  in 
equity.-     Thus,  it  has  been  held  that  a  district  court  of 


30  Security  Co.  v.  Pratt,  65  Conn. 
161,  32  Atl.  396. 

31  Richardson  v.  Green,  9  CCA. 
565,  15  U.  S.  App.  488,  61  Fed.  423; 
Williams  v.  Crabb,  54  C  C  A.  213, 
117  Fed.  193,  59  L.  R.  A.  425; 
Sawyer  v.  White,  58  C.  C.  A,  587, 
122  Fed.  223;  Pulver  v.  Leonard, 
176  Fed.  586;  McDermott  v.  Han- 
non,  203  Fed.  1015;  Gaines  v. 
Fuentes,  92  U.  S.  10,  23  L.  Ed.  524; 
Fraser  v.  Jennison,  106  U.  S.  191, 
27  L.  Ed.  131,  1  Sup.  Ct.  Rep.  171; 
Ellis  V.  Davis,  109  U.  S.  485,  27 
L.  Ed.  1006,  3  Sup.  Ct.  Rep.  327. 

32  Craigie  v.  McArthur,  4  Dill. 
474,  Fed.  Cas.  No.  3341. 

33  Southworth  v.  Adams,  4  Fed.  1. 

34  Schneider  v.  Eldredge,  125 
Fed.  639;  Yonley  v.  Lavender,  SS 
IT.  S.  (21  Wall.)  276,  22  L.  Ed.  538; 
Hess  V.  Reynolds,  113  U.  S.  73,  28 
L.  Ed.  927,  5  Sup.  Ct.  Rep.  377; 
Clark  V.  Bever,  139  U.  S.  96,  35 
L.  Ed.  88,  11  Sup.  Ct.  Rep.  468; 
Lyers  v.  McAulcy,  149  U.   S.  608. 


37  L.  Ed.  867,  13  Sup.  Ct.  Rep.  906. 

35  McClellan  v.  Garland,  217 U.S. 
268,  53  L.  Ed.  208,  29  Sup.  Ct.  Rep. 
92. 

36  Manchester  v.  Hotchkiss,  13 
Int.  Rev.  Rec.  125,  10  Am.  L.  Reg. 
(N.  S.)  379,  Fed.  Cas.  No.  9004; 
Atkins  V.  Fiber  Disintegrating  Co., 
85  U.  S.  (18  Wall.)  272,  21  L.  Ed. 
841;  Louisville  Underwriters,  In 
re,  134  U.  S.  492,  33  L.  Ed.  994,  10 
Sup.  Ct.  Rep.  589. 

37  Steams  v.  Barrett,  1  Mas.  153, 
Fed.  Cas.  No.  13337. 

3s  As  to  what  are  "suits"  within 
the  removal  statute,  see  5  Fed. 
Stats.  Ann.,  2d  ed.,  pp.  43-57. 

As  to  suits  removable,  see,  Id., 
pp.  84-SS. 

As  to  suits  nonremovablo,  sec, 
Id.,  pp.  89-92. 

1  See.  ante.  §§  438,  iZd. 

-  See,  ante,  §  440. 

Order  of  state  court  removing 
a  cause  to  the  federal  court  can 
confer  no  jurisdiction  on  the  lat- 


569 


§442 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


the  United  States  has  no  authority  or  power  to  order  a 
criminal  prosecution  pending  in  a  state  court  to  be  trans- 
ferred into  the  federal  district  court  therefrom.^ 

§  442.  Persons  who  may  remove  action.  A  person  who 
has  brought  an  action  in  a  court  of  his  own  state  against 
a  citizen  of  another  state,  is  not  entitled  to  remove  the 
action  to  a  federal  court/  that  privilege  being  accorded 
to  defendants  only.-  A  defendant  within  the  meaning  of 
section  twenty-eight  of  the  federal  Judicial  Code,  is  one 
who  is  named  as  such,  and  appears  in  the  record  as  a 
defendant,  at  the  time  the  right  of  removal  exists.^  Fail- 
ure on  the  part  of  one  of  the  defendants  to  join  in  the 
petition  is  fatal  to  the  right  of  removal  when  there  is  no 
separable  controversy.*  But  merely  nominal  or  formal 
defendants  need  not  join  in  the  petition,  where  they  have 
not  appeared,  and  where  there  is  no  issue  between  them 
and  the  plaintiff  upon  which  a  verdict  could  have  been 
rendered.^    And  defendants  who  are  all  residents  of  the 


ter  court,  where  the  petition  for 
removal  fails  to  show  that  the 
party  is  entitled  to  a  removal. — • 
Hubbard  v.  Chicago,  M.  &  St.  P. 
R.  Co.,  176  Fed.  994. 

3  Virginia  v.  Paul,  148  U.  S.  107, 
37  L.  Ed.  386,  13  Sup.  Ct.  Rep.  536. 

1  Hurst  V.  Western  &  A.  R.  Co., 
93  U.  S.  71,  23   L.  Ed.  805. 

2  Judicial  Code,  §28,  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  16.  See: 
Chappell  V.  Chappell,  86  Md.  532, 
39  Atl.  984;  Pitkin  County  Min. 
Co.  V.  Markell,  33  Fed.  386;  Caples 
V.  Texas  &  P.  R.  Co.,  67  Fed.  9; 
Hageria  v.  Mississippi  River 
Power  Co.,  202  Fed.  771;  Glover 
Machine  Works  v.  Cooke  Jellico 
Coal  Co.,  222  Fed.  531;  Harnick  v. 
Harnick,  153  U.  S.  192,  38  L.  Ed. 
685,  14  Sup.  Ct.  Rep.  835. 

a  Walker  v.  Richards,  55  Fed. 
129. 


4  Western  Union  Tel.  Co.  v. 
Brown,  32  Fed.  337;  Thompson  v. 
Chicago,  St.  P.  &  K.  C.  R.  Co.,  60 
Fed.  773;  Plymouth  Consol.  Gold 
Min.  Co.  V.  Amador  &  S.  Canal  Co., 
118  U.  S.  264,  30  L.  Ed.  232,  6  Sup. 
Ct.  Rep.  1034. 

5  Shattuck  y.  North  British  & 
Mercantile  Ins.  Co.,  7  C.  G.  A.  386, 
58  Fed.  609. 

Parties  having  no  interest, 
either  personal  or  representative, 
have  no  right  to  remove  cause. — 
Adelbert  College  of  Western  Re- 
serve University  v.  Toledo,  W.  & 
W.  R.  Co.,  47  Fed.  836;  appeal  dis- 
missed, 146  U.  S.  354,  36  L.  Ed. 
1002,  13   Sup.  Ct.  Rep.  281. 

Thus,  where  a  person  has  made 
no  application  to  intervene,  and 
under  the  statute  can  not  inter- 
vene with  an  order  of  court  grant- 
ing permission  to  do  so,  can  not 


570 


Ch.  XVIII.]  TIME   OF   APPLICATION.  §  443 

state  in  wliicli  the  suit  is  brought,  they  are  not  entitled  to 
a  removal.^  An  unnaturalized  Indian  sued  in  state  court 
may  remove  the  cause  to  a  federal  court/  Superintend- 
ent of  insurance  of  a  state  creating  an  insurance  com- 
pany, in  whom  its  property  has  vested  by  its  dissolution, 
inaj^  remove  a  suit  brought  in  a  court  of  the  state  before 
its  dissolution,  by  a  citizen  of  another  state. ^ 

§  443.  Time  of  application  for  removal — In  general. 
The  Judicial  Code  requires  that  in  all  cases,  except  in 
suits  removable  on  the  ground  of  prejudice  or  local  influ- 
ence,^ where  a  party  desires  to  remove  a  cause  he  must 
make  and  file  his  petition,  duly  verified,  in  the  state  court 
at  the  time,  or  at  any  time  before,  the  defendant  is  re- 
quired by  the  laws  of  the  state  or  the  rule  of  the  state 
court  to  answer  or  plead  to  the  complaint  or  declaration 
of  the  plaintiff.-  This  is  substantially  the  provision  as 
to  time  when  to  apply  for  a  removal  prevailing  before  the 
adoption  of  the  federal  Judicial  Code.^  This  require- 
ment as  to  time  has  been  said  not  to  be  jurisdictional  and 
may  be  waived.'*  And  an  application  for  removal  is  re- 
remove  a  cause. — State  v.  Barns,      fluence  as  a  ground  for  removal  of 

5  N.   D.  350,   65  N.  W.   688.     See      cause,  see,  post,  §  448. 
Chesapeake  &  O.  R.  Co.  v.  Ven-  2  J  u  d  i  c  i  a  1  Code,  §  29,  5  Fed. 
able,  111  Ky.  41,  63  S.  W.  35.              Stats.  Ann.,   2d  ed.,  p.  235. 

f.  Martin    v.    Snyder,    148    U.    S.  3  See:    Dixon  v.  Western  Union 

663,  37  L.  Ed.  602,  13  Sup.  Ct.  Rep.  Tel.  Co.,  38  Fed.  377;   Cookerly  v. 

706.    See:  Chappell  V.  Chappell,  86  Great    Northern    R.    Co.,    70    Fed. 

Md.   544,   39  Atl.  984;    Gregory  v.  277;  Fidelity  Trust  &  Safety-Vault 

Pike,  15  C.  C.  A.  42,  21  U.  S.  App.  Co.  v.  Newport  News  &  M.  V.  Co., 

638,  67  Fed.  847;  Fife  v.  Whittell,  70  Fed.  403;  First  Littleton  Bridge 

102  Fed.  539;    Parkinson  v.   Barr,  Corp.   v.   Connecticut  River   Lum- 

105  Fed.  84;    Martin  v.  Baltimore  her   Co.,    71    Fed.    225;    Collins    v. 

6  O.  R.  Co.,  151  U.  S.  677,  38  L.  Ed.  Stott,  76  Fed.  613. 

313,  14  Sup.  Ct.  Rep.  533.  See,    also,    cases    cited    in    next 

7  Paul  V.  Chilsoquie,  70  Fed.  420.  footnote. 

s  Relfe  V.  Rundle,  103  U.  S.  22,  4  Ayers  v.  Watson,  113  U.  S.  594, 

sub  nom.  Life  Assoc,  of  America,  28  L,  Ed.  1093,  5  Sup.  Ct.  Rep.  641; 

Relfe,    Supt.   Ins.    v.    Rundle,    26  St.   Louis   &   S.   F.   R.   Co.   v.   Mc- 

L.  Ed.  337.  Bride,  141  U.  S.  127,  35  L.  Ed.  659, 

1  As  to  prejudice  or  local   in-  ii    Sup.    Ct.    Rep.    982;    Texas    & 

571 


§443 


CODE  PLEADING  AND  PRACTICE. 


[Pt.l, 


garded  as  in  time,  if  not  made  within  the  time  specified 
in  the  removal  statute,  if  the  application  is  made  as  soon 
as  the  cause  becomes  a  removable  one.^  On  the  other 
hand  it  has  been  held  that  it  is  imperative  that  the  appli- 
cation to  remove  be  made  when  the  answer  is  due,*'  and 
the  court  possesses  no  discretionary  power  to  enlarge  the 
time.^  A  cause  is  held  not  to  be  removable  after  the  time 
fixed  by  the  state  statute  or  the  rules  of  the  state  court 
for  the  defendant  to  answer  or  plead,  even  though  the 
time  has  been  extended  by  stipulation  and  by  order  of 
court,^  although  a  contrary  doctrine  is  announced  in  some 
of  the  cases.^  If  one  of  several  defendants  in  a  suit  on  a 
joint  cause  of  action  loses  his  right  to  remove  the  action 
by  failing  to  make  the  application  in  time,  the  right  is 
lost  as  to  all.^°  The  objection  that  the  right  of  removal 
from  the  state  court  was  not  asserted  within  the  time 
required  by  the  removal  act,  is  an  objection  which  may 


p.  R.  Co.  V.  Cox,  145  U.  S.  593,  36 
L.  Ed.  829,  12  Sup.  Ct.  Rep.  905; 
Central  Trust  Co.  v.  McGeorge, 
151  U.  S.  129,  38  L.  Ed.  98,  14  Sup. 
Ct.  Rep.  286;  Martin's  Admr.  v, 
Baltimore  &  O.  R.  Co.,  151  U.  S. 
673,  14  Sup.  Ct.  Rep.  533,  sub 
nom.  Gerling  Admr.  of  Martin  v. 
Baltimore  &  O.  R.  Co.,  38  L.  Ed. 
311;  Powers  v.  Chesapeake  & 
O.  R.  Co.,  169  U.  S.  92,  42  L.  Ed. 
673,  18  Sup.  Ct.  Rep.  264. 

5  Remington  v.  Central  Pac.  R. 
Co.,  138  U.  S.  95,  49  L.  Ed.  959, 
25  Sup.  Ct.  Rep.  577.  See  Bryson 
V.  Southern  R.  Co.,  141  N.  C.  595, 
54  S.  E.  434. 

6  Kansas  City,  Ft.  S.  &  M.  R. 
Co.  V.  Daughtry,  138  U.  S.  298,  34 
L.   Ed.  963,  11  Sup.   Ct.  Rep.  306. 

7  Dougherty  v.  Western  Union 
Tel.  Co.,  61  Fed.  138. 

8  Spangler    v,    Atchison,    T.    & 


S.  F.  R.  Co.,  42  Fed.  305;  Ruby 
Canyon  Gold  Min.  Co,  v.  Hunter, 
60    Fed.   305. 

Stipulations  between  the  parties 
allowing  defendant  further  time  to 
answer,  are  ineffectual  to  extend 
the  time  within  which  to  file  the 
petition  for  removal.  —  Martin  v. 
Carter,  48  Fed.  596;  Rock  Island 
Nat.  Bank  v.  Keator  Lumber  Co., 
51  Fed.  897;  Schipper  v.  Consumer 
Cordage   Co.,   72   Fed.  803. 

Compare:  All  mark  v.  Platte 
Steamship  Co.,  76  Fed.  614. 

9  Roycroft  v.  Green,  49  Fed.  177; 
People's  Bank  of  Greenville  v. 
Aetna  Ins.  Co.,  53  Fed.  161;  Turner 
V.  Illinois  Cent.  R.  Co.,  55  Fed. 
689;  Price  v.  Lehigh  Valley  R.  Co., 
65  Fed.   825. 

10  Rogers  V.  Van  Nortwick,  45 
Fed.  513;  Fletcher  v.  Hamlet,  116 
U.  S.  408,  29  L.  Ed.  679,  6  Sup.  Ct. 
Rep.   426, 


572 


I 


ell.  XVIII.]  PREJUDICE    OR    LOCAL   INFLUENCE.  §  44-i 

bo  waived ;"  and,  altbough  the  petition  for  removal  is  not 
filed  until  after  a  demurrer  is  interposed  in  the  state 
court,  if  no  motion  to  remand  on  that  ground  is  made  in 
the  district  court,  the  objection  is  waived,  and  can  not 
be  made  on  appeal. ^^ 

§  444.  On  ground  of  prejudice  or  local,  influ- 
ence. When  it  shall  be  made  to  appear  in  the  manner  re- 
quired by  statute  that  a  party  can  not  secure  a  fair  and 
impartial  trial  in  the  state  court  in  which  the  action  is 
brought,  because  of  prejudice  or  local  influence,  the  cause 
may  be  removed  to  a  federal  court  at  any  time  before  the 
trial  or  final  hearing  thereof  is  actually  held.^  Among 
the  reasons  for  this  liberal  rule  peculiar  to  this  particular 
cause  of  removal  are  (1)  the  fact  that  the  prejudice  may 
not  exist  at  the  beginning  of  the  action,  or  (2)  the  hostile 
local  influence  may  not  become  known  or  developed  at  an 
earlier  stage  of  the  proceeding  than  at  the  time  when  the 
application  for  removal  is  made.-  Where  there  has  been 
a  trial  by  jury  in  the  state  court,  the  judgment  on  the 

11  See   authorities,    footnote    4,  Hearing  b  e  f  o  r  e  a  commission 
this  section.  appointed  under  a  state  statute  is 

12  Newman  v.  Schwerin,  61  Fed.  not  a  "trial"  within  the  meaning 
865 

of  the  removal  statute. — Gurnee  v, 
1  Federal  Judicial  Code,   §  28,   5      „  •  ,      ,    tt     ,.        „„^ 

r^  ^    o*  *      A  o^     J         .^   c-  Brunswick,    1    Hughes   270,    1    Va. 

Fed.  Stats.  Ann.,  2d  ed.,  p.  16.  See:       ^      ^    „^. 

^     ..        .   ,   .        r^  V.  OT      L.   J.   301,   Fed.   Gas.    No.    5S72; 

Gontmental  Ins.   Go.  v.  Casey,   27  ' 

Gratt.   (Va.)   216;    Lookout  Mt.  R.  ^""^''  ''•   ^'^^^^^  ^^^^^y,   14   Fed. 

Co.  V.  Houston,  32  Fed.  711;  Davis  "^'    Mississippi   &   Rum   River 

V.    Chicago    &    N.    W.    R.    Co.,    46  ^°°"^   <^°-   ^-   Patterson.  98   U.    S. 

Fed.  307;    Detroit,  City  of,  v.  De-  ^^^'  ^5   L.   Ed.  206;    Hess  v.  Rey- 

troit  City  R.  Co.,  54  Fed.  1;   Fisk  ^"l^^'  ^^^  U.  S.  73.  28  L.  Ed.  927. 

v.  Henarie,  142  U.  S.  459,  35  L.  Ed.  ^    ^"P-    ^^-    ^^P-    ^^^     Delaware 

1080,  12  Sup.  Ct.  Rep.  207.  levers-  <^°""ty   v.    Diebold    Safe    &    Lock 

ing  32  Fed.  417,  35  Fed.  230.  ^°'  ^^^  ^-  ^-  ^'^^'  ^^  ■-   ^^'  ^^^' 

See,  also,  note,  11  L.  R.  A.  ."0.  ^^  ^''P-  ^^-  ^^P-  399. 

Before  final   hearing  and  deter-  Compare:  Drainage  District  No. 

mination  of  the   cause,  only,   can  19  v.  Chicago,  M.  &  St.  P.  R.  Co., 

removal  be  had  on  the  ground  of  198  Fed.  253. 

prejudice  or  local  influence. —  2  Hess    v.    Reynolds,    113    IT.    S. 

Stevenson    v.    Williams.    86    U.    S.  73.  78  L.   Ed.  927,  5  Sup.  Ct.  Rep. 

(19  Wall.)   572,  22   L.   Ed.  162.  377. 

573 


§445 


CODE  PLEADING  AND  PKACTICE. 


[I't.  r, 


verdict  has  been  set  aside  and  a  new  trial  granted,  the 
canse  may  be  thereafter,  and  before  a  second  trial  is  had, 
removed  to  a  federal  court,  for  "local  prejudice,"  bo- 
cause  the  judgment  of  the  state  court,  having  been  va- 
cated and  set  aside,  the  trial  which  was  had  in  the  state 
court  becomes  a  nullity  in  so  far  as  the  removal  of  the 
cause  is  concerned.^ 

§  445.  From  what  court.  The  Judicial  Code  regulat- 
ing the  removal  of  causes  for  any  one  of  the  reasons  or 
grounds  therein  provided^  applies  to  courts  of  record 
only,  and  does  not  include  justices'  courts  and  like  courts 
of  inferior  jurisdiction,  for  the  reason  that  all  such  causes 
are  appealable  to  state  courts  of  record  in  which  they  are 
triable  de  novo,-  although  the  contrary  is  held.^  And  it 
has  been  said  causes  are  removable  under  the  removal 
act  from  courts  of  original  jurisdiction,  only,  and  not 
from  appellate  courts.* 


3  Home  Life  Ins.  Co.  v.  Dunn, 
86  U.  S.  (19  Wall.)  214,  22  L.  Ed, 
68;  Baltimore  &  O.  R.  Co.  v.  Bates, 
119  U.  S.  464,  30  L.  Ed.  436,  7  Sup. 
Ct.  Rep.  285;  Schraeder  Min.  & 
Mfg.  Co.  V.  Packer,  129  U.  S.  688, 
37  L.  Ed.  760,  9  Sup.  Ct.  Rep.  385. 

Compare:  Fisk  v.  Henarie,  142 
U.  S.  459,  35  L.  Ed.  1080,  12  Sup. 
Ct.  Rep.  207,  reversing  32  Fed. 
417,  35  Fed.  230;  McDaniel  v.  Jor- 
dan, 178  U.  S.  229,  44  L.  Ed.  1048, 
20  Sup.  Ct.  Rep.  886,  but  both  of 
these  cases,  it  is  to  be  noted,  were 
decided  under  the  peculiar  pro- 
visions of  the  statute  of  March  3, 
1887,  which  provisions  are  not 
carried  into  the  Judicial  Code. 

1  As  to  grounds  for  removal  of 
cause,  see,  post,  §§  447-453. 

2  Rathbone  Oil  Tract  Co.  v. 
Ranch,  5  W.  Va.  79;  New  York, 
I.  &  P.  Co.  V.  Milburn  Gin  &  Ma- 
chine Co.,  35  Fed.  225,  226;  dis- 
cussed but  not  decided. 


Special  tribunal,  as  commis- 
sioners of  appraisement,  and  the 
like,  are  not  included.— See,  ante, 
§  444,  footnote  1. 

3  Ward  V.  Matthews,  2  Blatchf. 
370,  Fed.  Cas.  No.  17955;  Katz  v. 
Herschel  Mfg.  Co.,  150  Fed.  684. 

4  Williams  v.  Lowe,  4  Neb.  382; 
affirmed,  94  U.  S.  650,  24  L.  Ed. 
216;  Berry  v.  Irick,  23  Gratt. 
(Va.)  484,  12  Am.  Rep.  539;  Craigle 
V.  McArthur,  4  Dill.  474,  4  Cent. 
L.  J.  237,  15  Alb.  L.  J.  121,  Fed. 
Cas.  No.  3341;  McCallon  v.  Water- 
man, 1  Flipp.  651,  Fed.  Cas.  No. 
8675;  Katz  v.  Herschel  Mfg.  Co., 
150  Fed.  684;  Stevenson  v.  Wil- 
liams, 86  U.  S.  (19  Wall.)  572,  22 
L.  Ed.  162;  Vannevar  v.  Bryant, 
88  U.  S.  (21  Wall.)  41,  43,  22  L.  Ed. 
476,  477;  Fashnacht  v.  Frank.  90 
U.  S.  (23  Wall.)  416,  419,  23  L.  Ed. 
81,  82;  Lowe  v.  Williams,  94  U.  S. 
650,  652,  24  L,  Ed.  216,  affirming 
4  Neb.  382. 

See,  also,  note,  12  Am.  Rep.  545. 

74 


Cll.  XVIII.]  GROUNDS   OF    REMOVAL.  §§  44G,  447 

§  446.  To  WHAT  COURT.  A  cause  can  be  removed  from  a 
state  court  to  the  federal  district  court  of  the  district  in 
which  the  state  in  a  court  of  which  the  suit  is  pending  is 
located,  without  regard  to  where  the  action  originated;^ 
but  where  the  ground  of  removal  is  that  a  federal  ques- 
tion is  involved-  in  controversies  between  parties  resid- 
ing in  different  states,  the  parties  can  confer  jurisdiction 
upon  a  particular  federal  court,  although  neither  the 
plaintiff  nor  the  defendant  reside  within  the  territorial 
jurisdiction  of  that  court.^ 

§  447.  Grounds  of  removal — In  general.  We  have 
already  seen  that  the  grounds  of  removal  of  a  cause  from 
a  state  court  to  a  federal  court  is  wholly  statutory,  and 
that  the  express  words  of  the  removal  statute  cover  only 
a  very  small  part  of  the  cases  arising  in  actual  practice ; 
those  cases  not  provided  for  in  express  terms  of  the  stat- 
ute are  included  by  the  courts  by  construction,^  with  the 
result  that  a  complicated  and  technical  system  has  grown 
up.  The  main  classes  of  cases  which  are  removable  under 
the  express  terais  of  the  present  federal  Judicial  Code 
and  by  the  statutory  construction  of  the  courts  are  those 
involving : 

1.  Diversity  of  citizenship; 

2.  Separable  controversy; 

3.  Prejudice  or  local  influence; 

4.  Denial  of  civil  rights ; 

1  Federal  Judicial   Code,   §  29,   5  parte,  85  U.  S.   (18  Wall.)   417,  21 

Fed.    Stats.   Ann.,    2d    ed.,    p.    235.  L.  Ed.  904;  Hess  v.  Reynolds,  113 

See:    Stewart  v.  Cybur  Lumber  U.  S.  73,  28  L.  Ed.  927,  5  Sup.  Ct. 

Co.,    Ill    Miss.    844,    72    So.    276;  -^^^P-  ^"'^• 

Knowlton   v.   Congress   &   Empire  "  ^^  *°  federal  q  u  e  s  1 1  o  n  s  in- 

Spring  Co.,  13   Blatchf.   170,   Fed.      ''^^^^^  ^'  -''"""^  °f  removal,  see. 

post,   §  452. 
Cas.  No.  7902;  Cobb.  V.  Globe  Mut.  'rur.^         ^  u  •  ,,     „ 

3  Hubbard  v.   Chicago,  M.   & 
L.   Ins.    Co..    3    Hughes    452,    Fed.      g^    p    ^    ^^^   ^^g  p^^    ^^^    ^^^. 

Cas.  No.  2921;  St.  John  v.  United  western  Land  Co.  v.  Butte  &  Bos- 
States  Fidelity  &  Guaranty  Co.,  ton  Min.  Co..  210  U.  S.  368,  52 
213  Fed.  685;  St.  John  v.  Taintor,  l.  Ed.  1101,  28  Sup.  Ct.  Rep.  720. 
220  Fed.   458;    State   Ins.   Co.,   E.x  i  See,  ante,  §  438. 

575 


§  448  CODE  PLEADING  AND  PRACTICE.  [Ft.  I, 

5.  Actions  in  which  a  federal  question  is  involved ;  and 

6.  Actions  against  public  officers,  etc. 

A71  outline  treatment  of  each  of  these  classes  of  cases 
follows,  without  any  effort  to  be  exhaustive  of  all  the 
points  raised  and  decided  in  connection  with  these  classes 
of  cases  removable.  Such  a  treatment  would  require  a 
volume  of  more  than  a  thousand  pages.  We  must  content 
ourselves  with  a  reference  to  the  most  recent,  most  schol- 
arly and  most  exhaustive  treatment  of  each  and  all  of 
these  classes  of  cases,  and  of  other  incidental  matter  con- 
nected therewith.- 

§  448.  1.  Diversity  op  citizenship.  We  have  al- 
ready seen  that  the  right  to  remove  a  case  from  a  state  to 
a  federal  court  is  restricted  by  the  federal  Judicial  Code 
to  the  defendant  or  the  defendants  in  the  cause. ^  The 
phiintiff,  having  chosen  his  forum,  no  matter  where,  must 
remain  in  that  forum,  and  he  can  not  remove  at  all.  But 
any  defendant  sued,  not  in  a  court  of  his  o^\ti  state,  but  in 
the  state  court  of  the  plaintiff,  may  always  remove,  by 
compliance  with  the  procedure  devised  for  that  pui*pose.- 
Defendants  sued  in  a  court  of  their  own  state  by  citizens 
of  another  state  have  no  right  of  removal;^  but  any  de- 
fendant who  is  a  citizen  of  another  state  may  remove  the 
cause,  notwithstanding  his  codefendants  are  citizens  of 
tlie  state  in  which  the  action  is  brought,*  where  the  con- 

2  See  5  Fed.  Stats.  Ann.,  2d  ed.,  3  Martin    v.    Snyder,    146    U.    S. 

pp.  21-235.  663,  36  L.  Ed.  602,  13  Sup.  Ct.  Rep. 

1  See    ante    §442  '^^^-    ^^^-  Chappell  v.  Chappell,  86 

„  _   ,    „,  Md.   544,  39  Atl.  984;    Gregory  v. 

1;  Gavin  v.  Vance,  32  Fed.  84.  -,c  r>   r<    a    ^»    01  tt    c-    Ar.r^ 

Pike,  15  C.  C.  A.  42,  21  U.  S.  App. 

"Residence"  is  not  synonymous  q^S,  67  Fed.  847;    Hunter  v.  Con- 

with   "citizenship"   within   the  re-  rad,  85  Fed.  806;  Fife  v.  Whittell, 

moval   statute.  —  Cameron   v.  102  Fed.  539;    Parkinson  v.  Barr, 

Hodges,  127  U.  S.  322,  32   L.   Ed.  105  Fed.  84;   Martin  v.  Baltimore 

132,   8    Sup.   Ct.   Rep.   1154.     See:  &  O.  R.  Co.,  151  U.  S.  677,  38  L.  Ed. 

Dannahy    v.    National    Bank,    12  313,  14   Sup.  Ct.  Rep.  533. 

C.  C.  A.  76,  24  U.  S.  App.  351,  64  4  Hall    v.    Chattanooga    Agricul- 

Fed.    149;    Blair   v.    Silver  Peak  tural  Works,  48  Fed.  599;  Reeves 

Mines,   93  Fed.  335.  v.  Corning,  51  Fed.  774. 

57G 


L'h.  XVIII.]  DIVERSITY   OF    CITIZENSHIP.  §  448 

troversy  is  a  separable  one."  Nor  is  it  necessary  to 
entitle  a  defendant  to  remove  that  the  plaintiffs  should 
all  ho  citizens  of  the  state  where  the  action  is  brouglit.*' 
Municipal  as  well  as  private  corporations  are  treated  as 
citizens  of  the  state  under  whose  laws  they  are  org^anizod 
or  created,  for  the  purpose  of  removal  of  causes.'^  The 
citizensliip  of  a  corporation  within  the  meaning  of  the 
Judicial  Code  is  fixed  in  the  state  granting  its  charter, 
although  it  may  be  organized  for  the  purpose  of  doing 
business  chiefly  in  other  states,^  for  the  legal  presumption 
is  that  its  members  are  citizens  of  the  state  in  which, 
alone,  the  corporate  body  has  a  legal  existence,  and  a  suit 
against  such  corporation  in  its  corporate  name  is  pre- 
sumed to  be  a  suit  against  citizens  of  the  state  which  cre- 
ated the  corporation ;  and  no  averments  or  evidence  to  the 
contrary  is  admissible  for  the  purpose  of  withdrawing  the 
suit  from  the  jurisdiction  of  a  court  of  the  United  States.^ 
The  citizenship  of  parties  which  determines  the  right  to 
remove  a  cause  is  that  of  the  parties  as  persons,  and  not 
an  official  citizenship,  acquired  in  a  representative 
capacity.^** 

•'•As  to  separable  controversy,  314,  14  L.  Ed.  953;   Ohio  &  M.  R. 

see,  post,   §  449.  Co.  v.  Wheeler,  66  U.  S.  (1  Black) 

0  Alley  V.  Hines  (Edward)  Lum-  286,  296,  17  L.  Ed.  130,  133;  Cowles 
ber  Co.,  64  Fed.  903.  But  see  v.  Mercer  County,  74  U.  S.  (7  Wall.) 
West  V.  Aurora,  73  U.  S.  (6  Wall.)  118,  121,  19  L,  Ed.  86,  87;  Paul  v. 
139,  18  L.  Ed.  819.  Virginia,   75  U.   S.    (8  Wall.)    168, 

7  Zambrino  v.  Galveston,  H.  &  178,  19  L.  Ed.  357,  359;  Baltimore 
S.  R.  Co.,  38  Fed.  449,  451;  Yaleta,  &  O.  R.  Co.  v.  Harris,  79  U.  S. 
City  of,  V.  Cauda,  67  Fed.  6.  (12   Wall.)    65,    81,    82,    20    L.    Ed. 

8  Baughman  v.  National  Water  354,  358;  Muller  v.  Dows,  94  U.  S. 
Works  Co.,  46  Fed.  4.  See:  444,  445,  24  L.  Ed.  207;  Baltimore 
Stephens  v.  St.  Louis  &  S.  F.  R.  &  O.  R.  Co.  v.  Koontz,  104  U.  S. 
Co.  47  Fed.  530;  Overman  Wheel  5,  12,  26  L.  Ed.  643,  645;  National 
Co.  V.  Pope  Mfg.  Co.,  46  Fed.  577.  Steamship   Co.  v.  T  u  g  m  a  n,   106 

oZambrino   v.   Galveston,   H.   &  U.  S.  120,  27  L.  Ed.  87,  1  Sup.  Ct. 

S.  R.  Co.,  38  Fed.  449,  451.     See:  Rep.  58. 

Louisville,  C.  &  C.  R.  Co.  v.  Lit-  As  to  citizenship  and  residence 

son,    43    U.    S.    (2    How.)    497,    11  of  corporation,  see  note,  14  L.  R.  A. 

L.  Ed.  353;   Marshall  v.  Baltimore  184. 
&  O.  R.  Co.,  57  U.   S.   (16  How.)  lo  Wilson  v.  Smith,  66  Fed.  81; 

1  Code  PI.  and  Pr.— 37  577 


§  449  CODE   PLEADESTG   AND   PRACTICE.  [Pt.  I, 

Suit  by  alien  plaintiffs  against  corporation  defendants 
not  chartered  by  the  state  in  which  suit  is  brouglit  is 
removable  by  such  defendants. ^^ 

§  449.    2.  Separable    controversy.      The    federal 

Judicial  Code  specifically  provides  that  where  there  are 
resident  and  nonresident  defendants,  and  a  nonresident 
defendant  alleges  prejudice  or  local  influence  preventing 
him  from  having  a  fair  and  impartial  trial  in  the  state 
court  in  which  the  action  is  brought,  if  it  is  made  to  ap- 
pear that  the  suit  can  be  fully  and  justly  determined  as  to 
the  other  defendants  in  the  state  court,  without  being 
affected  by  such  prejudice  or  local  influence,  and  no  party 
to  the  suit  will  be  prejudiced  by  such  separation,  the  dis- 
trict court  may  direct  the  suit  to  be  remanded  as  to  such 
other  defendants,^  and  may  proceed  with  the  trial  as  to 
such  nonresident  defendant.  But  a  defendant  can  not 
remove  from  a  state  to  a  federal  court  a  separable  con- 
troversy between  the  plaintiff  and  himself,  unless  he  is  a 
nonresident  of  the  state  where  the  suit  is  brought.^ 
Whether  there  is  a  separable  controversy  warranting  a 
removal  is  to  be  determined  by  the  condition  of  the  record 
in  the  state  court  at  the  time  of  filing  the  petition  for 
removal,  unless  it  is  alleged  that  defendants  wrong- 
fully joined  for  the  purpose  of  preventing  a  removal.^ 
There  are  no  separable  controversies  within  the  meaning 
of  the  statute  unless  the  case  as  made  by  the  complaint 
embraces  controversies  which  are  separate.  The  cause  of 
action  is  not  made  separable  because  one  defendant  sets 

Amory  v.  Amory,  95  U,  S.  186,  24  Dicker    v.    Southern    R.    Co.,    189 

L.  Ed.  428.  Fed.  224. 

11  Zambrino  v.  Galveston,  H.  &  i  Federal  Judicial  Code,  §  28,  first 

S.  R.  Co.,  38  Fed.  449,  451;    Sher-  proviso,  5  Fed.  Stats.  Ann.,  2d  ed., 

wood  V.  Newport  News  &  M.  Val.  p.  16. 

Co.,  55  Fed.  1;  Iowa  Lillooet  Gold  2  Thurber  v.  Miller,  67  Fed.  372. 

Min.  Co.  V.  Bliss,  144  Fed.  446.  3  See:    Hazard   v.   Robinson,    21 

Alien  plaintiff  presumed  to  have  Fed.  193;  Louisville  &  N.  R.  Co.  v. 

no  choice   as  to  district  court  in  Wangelin.  132  U.  S.  599,  33  L.  Ed. 

which  his  suit  must  be  brought. —  474,  10  Sup.  Ct.  Rep.  203. 

578 


Ch.  XVIII.]  SEPARABLE   CONTROVERSY.  §  449 

up  a  separate  defense  peculiar  to  himself,  wliich  may 
defeat  the  entire  cause  of  action.*  The  right  to  remove  a 
separate  controversy  is  now  restricted  to  citizens  of  dif- 
ferent states,  and  does  not  extend  to  aliens,^  and  an  un- 
naturalized member  of  an  Indian  tribe  can  not  remove  a 
suit  to  the  federal  court,  unless  it  affirmatively  appears 
upon  the  face  of  the  complaint  or  declaration  that  a  fed- 
eral question  is  necessarily  involved.® 

Joinder  of  causes  of  action  for  a  joint  liability,  as  in 
tort  against  a  foreign  railroad  corporation  and  certain  of 
its  resident  employees,  where  such  joinder  is  in  good 
faith,  will  prevent  the  cause  from  being  removed  -^  but  a 
fraudulent  joinder  of  a  resident  with  a  nonresident  de- 
fendant for  the  purpose  of  defeating  a  removal  to  a  fed- 
eral court  will  not  be  allowed  to  prevail  against  the  right 
of  removal ;  but  the  f raudulentness  of  the  joinder  can  not 
be  successfully  maintained  by  the  party  seeking  the  re- 
moval, when  by  the  well-settled  law  of  the  state  in  which 
the  action  is  brought,  and  in  which  the  cause  of  action 
arose,  the  defendants  are  jointly  liable  to  the  plaintiff.^ 

Separate  defenses  set  up  by  the  defendants  in  their 
answers  do  not  constitute  a  separable  controversy,®  be- 

4  See:    Arrowsmith  v.  Nashville  U.  S.  275,  29  L.  Ed.  899,  6  Sup.  Ct. 

&  D.  R.  Co,  57  Fed.  165;  Jarnecke  Rep.   730;    Plymouth  Consol.  Gold 

Ditch,  In  re,  69  Fed.  161;  Watson  Min.  Co.  v.  Amador  &  S.  Canal  Co., 

V.   Asbury   Park   &   B.  R.   Co.,   73  118  U.  S.  264,  30  L.  Ed.  232,  6  Sup. 

Fed.   1;    Rosenthal  v.  Coates,  148  Ct.  Rep.  1034;  Thorn  Wire  Hedge 

Cal.  142,  37  L.  Ed.  399,  13  Sup.  Ct.  Co.    v.    Fuller,    122    U.    S.    535,    30 

Rep.  576.  L.  Ed.  1243,  7  Sup.  Ct.  Rep.  1265: 

s  Woodrum  v.  Clay,  33  Fed.  897.  Southern  R.  Co.  v.  Miller,  217  U.  S. 

Rut   see    Insurance   Co.    of   North  209,  54  L.  Ed.  732,  30  Sup.  Ct.  Rep. 

America  V.  Delaware  Mut.  Ins.  Co.,  450;    Chicago,  B.  &   Q.  R.   Co.   v. 

50  Fed.  243.  Willard,  220  U.   S.  413,  55   L.  Ed. 

6  Paul  V.  Chilsoquie,  70  Fed.  401;  521,  31  Sup.  Ct.  Rep.  460. 
Tennessee   v.    Union    &    Planters'  s  Chicago,  B.  «&  Q.  R.  Co.  v.  Wil- 
Rank,  152  U.  S.  454,  38  L.  Ed.  511,  lard,  220  U.  S.  413,  55  L.  Ed.  521, 
14  Sup.  Ct.  Rep.  654.  31  Sup.  Ct.  Rep.  460. 

7  Pirie  v.  Tvedt,  115  U.  S.  41,  9  Little  v.  Giles,  118  U.  S.  596, 
29  L.  Ed.  331,  5  Sup.  Ct.  Rep.  1034,  601,  30  L.  Ed.  269,  271,  7  Sup.  Ct 
1161;    Sloane  v.   Anderson,   117  Rep.  32. 

579 


f  450  CODE  PLEADING  AND  PRACTICE.  [Pt.  L 

cause  the  defendants  can  not  make  an  action  several 
which  the  plaintiff  has  made  joint/"  whether  the  action  be 
ex  contractu  or  ex  delicto. 


§450. 


3.  Prejudice  or  local  influence.    The  fed- 


eral Judicial  Code,  providing  for  the  removal  of  a  cause 
from  the  state  court  to  a  federal  district  court  in  those 
cases  in  which,  because  of  prejudice  or  local  influence,  the 
party  seeking  removal  can  not  have  a  fair  and  impartial^ 
trial,  may  not,  it  is  thought,  limit  the  right  to  the  defend- 
ant only,-  as  was  the  case  formerly.^  Any  one  of  several 
parties  defendant  may  remove  the  cause  on  this  ground 
upon  a  proper  showing;^  but  one  of  several  defendants, 
being  a  citizen  of  the  same  state  as  the  plaintiff,  can  not 
remove  a  cause  upon  the  ground  of  prejudice  and  local 


10  Mitchell  v.  Smale,  140  U.  S. 
406,  409,  35  L.  Ed.  442,  443,  11  Sup. 
Ct.  Rep.  819. 

See  discussion  and  cases  cited, 
5  Fed.  Stats.  Ann.,  2d  ed.,  p.  133. 

1  Judicial  Code,  §  28,  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  16. 

2  Id.,  the  provision  being:  "At 
any  time  before  the  trial  of  any 
suit  which  is  now  pending  in  any 
district  court,  or  may  hereafter  be 
entered  therein,  and  which  has 
been  removed  to  said  court  from 
a  state  court  on  the  affidavit  of 
any  party  plaintiff  that  he  had 
reason  to  believe  and  did  believe 
that,  from  prejudice  or  local  in- 
fluence, he  was  unable  to  obtain 
justice  in  said  state  court,"  etc. 

See,  however,  the  annotations 
and  authorities  cited,  5  Fed.  Stats. 
Ann.,  2d  ed.,  pp.  186  et  seq. 

3  Turlock  V.  Webster  County,  40 
Fed.  706;  Campbell  v.  Collins,  62 
Fed.  849;  Flsk  v,  Henarie,  142 
U.  S.  459,  35  L.  Ed.  1080,  12  Sup. 
Ct.  Rep.  207. 


4  Jackson  v.  Pearson,  60  Fed. 
113. 

Plaintiffs  not  all  residents  of 
state  in  which  suit  brought,  but 
all  jointly  interested  In  the  cause 
of  action  against  a  nonresident  de- 
fendant applying  for  removal  on 
the  ground  of  local  prejudice,  it 
was  held  that  under  Act  March  3, 
1887,  24  Stats.  &  L.  552,  the  cause 
could  not  be  removed. — Gann  v. 
Northeastern  R.  Co.,  57  Fed.  417, 
following  Young  v.  Ewart,  132  U.  S 
267,  33  L.  Ed.  352,  10  Sup.  Ct. 
Rep.  75,  construing  U.  S.  Rev. 
Stats,  §  639. 

Where  removed  by  plaintiff  the 
district  court  shall,  on  application 
of  the  other  party,  examine  into 
the  truth  of  said  affidavit  and  the 
grounds  thereof,  a  n  d,.  unless  i  t 
shall  appear  to  the  satisfaction  of 
said  court  that  said  party  will  not 
be  able  to  obtain  justice  in  said 
state  court,  it  shall  cause  the  same 
to  be  remanded  thereto. — Judicial 
Code,  §  28,  5  Fed.  Stats.  Ann.,  2d 
ed.,  p.  17. 


580 


ill.  XVIII.]  TREJUDICE    AND    INFLLEXCE,  §450 

influence  between  himself  and  other  defendants.^  The 
oljject  of  allowing  the  removal  of  a  controversy  into  the 
district  court  of  the  United  States  from  a  state  court  is 
to  prevent  any  undue  advantage  being  gained  by  the  op- 
posite party  by  reason  of  prejudice  or  local  influence ;  and 
unless  such  prejudice  or  local  influence  in  favor  of  the 
opposing  party  is  alleged  and  proved,  he  can  not  be  pre- 
vented from  prosecuting  his  suit  against  all  the  defend- 
ants in  the  court  in  wliich  he  originally  brought  it.*'  Under 
section  six  hundred  and  thirty-nine  of  the  federal  stat- 
utes" it  has  been  held  that  a  cause  could  be  removed  on 
the  ground  of  local  prejudice,  only  where  all  the  parties 
to  the  suit  on  one  side  were  citizens  of  a  different  state 
from  those  on  the  other  side.^  And  a  similar  construction 
has  been  given  to  the  act  of  1887-1888,^  and  will  doubtless 
be  extended  in  the  Judicial  Code.  But  the  right  of  re- 
moval extends  not  only  to  cases  where  such  prejudice 
would  affect  the  jury,  but  also  to  cases  in  which  the  deci- 
sions of  the  judge  as  to  questions  of  law  or  fact  may  be 
affected  thereby.^**  A  cause  to  which  an  alien  is  a  party 
is  not  removable  under  the  *4ocal  prejudice"  clause  of 
the  Judicial  Code.^^  And  the  record  upon  removal  for 
local  prejudice  must  show  that  the  amount  in  controversy 
exceeds  three  thousand  dollars,  exclusive  of  interest  and 

5  Hanrick  v.  Hanrick,  153  U.  S.  See:  Wilder  v.  Virginia,  T.  &  C. 
192,  21  L.  Ed.  350,  14  Sup.  Ct.  Rep.  Steel  &  Iron  Co.,  46  Fed.  676; 
835.  Detroit,  City  of,  v.  Detroit  City  R. 

6  Id.     See  Herndon  v.  Southern  ^°-  ^^  ^^'^-  ^'  Jackson  v.  Pearson, 


R.  Co.,  76  Fed.  398. 


60  Fed.  113. 

10  Detroit,   City  of,  v.    Detroit 
T  U.  S.  Rev.  Stats..  §  639,  4  Fed.      ^ity  R.   Co.,  54   Fed.   1,   following 
Stats.  Ann.,  1st  ed.,  p.  257.  ^^^^.^^^^  ^   Seligman,  107  U.  S.  33, 

8  Young  V.  Ewart,  132  U.  S.  267,  27  L.  Ed.  359,  2  Sup.  Ct.  Rep.  10. 
33  L.  Ed.  352,  10  Sup.  Ct.  Rep.  75;  n  gee:  Judicial  Code,  §  28;  Cohn 
Rosenthal  v.  Coates,  148  U.  S.  142,  y  Louisville,  N.  O.  &  T.  R.  Co., 
37  L.  Ed.  399,  13  Sup.  Ct.  Rep.  576.      39  pe6.  227.     See  Adelbert  College 

9  Thompson  v.  East  Tennessee,  of  Western  Reserve  University  v. 
v.  &  G.  R.  Co.,  38  Fed.  673;  Pike  Toledo,  W.  &  W.  R.  Co.,  47  Fed. 
v.   Floyd,   42   Fed.   247;    Gann  v.      836. 

Northeastern  R.  Co.,  57  Fed.  417.  See,  also,  ante,  §  449,  note  5. 

581 


§451 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I, 


costs. ^2  ^  petition  for  the  removal  of  a  cause  on  the 
ground  of  local  prejudice  should  state  the  facts  relied  on 
as  showing  prejudice,  and  should  be  sworn  to  by  at  least 
one  of  the  petitioners,  or  by  some  agent  or  attorney  au- 
thorized by  them.^^  It  is  not  sufficient  merely  to  allege 
in  the  petition  and  affidavit  that  petitioner  ''has  reason 
to  believe,  and  does  believe,"  that  from  prejudice  and 
local  influence  he  will  be  unable  to  obtain  justice  in  the 
state  courts,  but  the  existence  of  prejudice  and  local  influ- 
ence must  be  alleged  as  a  matter  of  fact.^^ 


§451. 


4.    Denial  of   civil  eights.     Where  anv 


ci\dl  suit  or  criminal  prosecution  is  commenced  in  any 
state  court,  for  any  cause  whatsoever,  against  any  person 
who  is  denied  or  can  not  enforce  in  the  courts  of  the  state, 
or  in  the  part  of  the  state  where  such  suit  or  prosecution 
is  pending,  any  right  secured  to  him  by  any  law^  providing 
for  the  equal  civil  rights  of  the  citizens  of  the  United 
States,  or  of  all  persons  within  the  jurisdiction  of  the 


12  Judicial  Code,  §  24,  4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  862;  Todd 
V.  Cleveland  &  M.  V.  R.  Co.,  65 
Fed.  145.  See:  Bierbower  v.  Mil- 
ler, 30  Neb.  161,  46  N.  W.  431,  47 
N.  W.  1;  Oleson  v.  Northern  Pac. 
R.  Co.,  44  Fed.  1;  La  Montagne  v. 
Harvey  (T.  W.)  Lumber  Co.,  44 
Fed.  645;  Stone  v.  South  Carolina, 
117  U.  S.  430,  29  L.  Ed.  962,  6  Sup. 
Ct.  Rep.  799 ;  Stevens  v.  Nichols,  130 
U.  S.  230,  32  L.  Ed.  914,  9  Sup.  Ct. 
Rep.  518;  Crehore  v.  Ohio  &  M.  R. 
Co.,  131  U.  S.  240,  33  L.  Ed.  144, 
9  Sup.  Ct.  Rep.  692;  Pennsylvania 
Co.,  In  re,  137  U.  S.  451,  34  L.  Ed. 
738,  11  Sup.  Ct.  Rep.  141. 

As  to  amount  in  controversy  as 
affecting  right  to  removal,  see, 
post,  §  455. 

13  Hall  v.  Chattanooga  Agricul- 
tural Works,  48  Fed.  599. 

"When   it  shall   be   made  to  ap- 

5 


pear  to  the  said  district  court,"  is 
the  language  of  the  provision  of 
the  act  of  1877  as  corrected  by  the 
act  of  1888,  under  which  the  above 
decision  was  made.  The  provision 
of  the  Judicial  Code  is  identical, 
and  the  interpretation  will  pre- 
sumably be  the  same.  The  act 
does  not  define  how  the  matter 
shall  be  made  to  appear;  the 
Supreme  Court  of  the  United 
States  has  said  that  shall 
be  by  "an  affidavit  of  a  creditable 
person,  and  a  statement  of  t  h  e 
facts  in  such  affidavit  which  suf- 
ficiently evince  the  truth  of  the 
allegation." — Pennsylvania  Co.,  In 
re,  137  U.  S.  451,  34  L.  Ed.  738, 
11  Sup.  Ct.  Rep.  141. 

14  Short  V.  Chicago,  M.  & 
St.  P;  R,  Co.,  33  Fed.  114;  Schwenk 
V.  Strang,  59  Fed.  209;   Collins  v. 
Campbell,  62  Fed.  850. 
82 


Ch.  XVIII.]  DENIAL   OF    CIVIL    RIGHTS.  §  451 

United  States,  upon  due  application  and  a  proper  show- 
ing the  civil  suit  or  criminal  prosecution  may  be  trans- 
ferred from  the  state  court  to  the  federal  district  court 
of  the  district  in  which  the  state  in  which  such  suit  or 
prosecution  is  pending  is  situated.^  This  is  substantially 
the  provision  of  the  federal  Revised  Statutes  Ijefore  the 
enactment  of  the  Judicial  Code.-  Over  all  suits  concern- 
ing civil  rights  the  federal  district  courts  have  original 
jurisdiction.^  This  provision  for  removal  of  a  cause  for 
denial  of  civil  rights  has  been  said  to  refer  primarily,  if 
not  exclusively  to  a  denial  of  such  rights  or  an  inability 
to  enforce  them  resulting  from  the  constitution  or  laws 
of  the  state  in  which  the  civil  suit  or  criminal  prosecution 
is  pending,'*  and  not  to  include  a  criminal  misuse  of  a  state 
law,  or  a  denial  by  a  subordinate  state  officer  of  a  right 
which  the  state  law  accords,^  or  the  nonrecognition  by  the 
courts  of  such  states  of  a  pardon  for  the  alleged  crime 
pleaded  in  bar  of  a  criminal  prosecution;^  but  it  does  in- 
clude a  case  of  the  criminal  prosecution  of  a  negro  citizen 
in  which  other  negro  citizens  are  excluded  from  the  grand 
and  petit  jury  on  account  of  their  race  and  color,^  but 
not  a  case  in  which  a  motion  by  a  negro  citizen  that  a 
venirie  be  so  modified  that  some  portion  of  the  jury  will 
be  composed  of  citizens  of  his  own  race  f  includes  a  denial 

1  Federal  Judicial  Code,  §  31,  5  565,  40  L.  Ed.  1075,  16  Sup.  Ct. 
Fed.  Stats.  Ann.,  2d  ed.,  p.  376.  Rep.  904. 

2  XJ.  S.  Rev.  Stats,,  §  641,  4  Fed.  6  Kentucky  v.  Powers,  201  U.  S. 
Stats.  Ann.,  1st  ed.,  p.  258.  1,  50  L.  Ed.  633,  26  Sup.  Ct.  Rep. 

3  Federal  Judicial  Code,  §  24,  par.  387. 

12,  4  Fed.   Stats.  Ann.,  2d  ed.,  p.  7  Strauder  v.  West  Virginia,  100 

840.  U.  S.  303,  25  L.  Ed.  664.    See:  Cali- 

4  Virginia  v.  Rivers,  100  U.  S.  fornia  v.  Chue  Fan,  42  Fed.  865; 
313,  sub  nom.  Virginia,  In  re,  25  Dubuclet  v.  Louisiana,  103  U.  S. 
L.  Ed.  667.  551,  26  L.  Ed.  504. 

^>  Id.  8  Virginia  v.  Rives,  100  U.  S.  313, 

Jury  commissioner  or  other  sub-  sub  nom.  Virginia,  In  re,  25  L.  Ed. 

ordinate  officer  excluding  negro  667.     See:    Neal  v.  Delaware,  103 

citizens  from  jury  because  of  their  U.  S.  370,  26  L.  Ed.  567;    Bush  v. 

race,    not    ground    for    removal. — ■  Kentucky,  107  U.  S.  110,  27  L.  Ed. 

Gibson   v.    Mississippi,    162    U.    S.  354,  1   Sup.  Ct.  Rep.   625;    Gibson 

583 


§452 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


of  the  electoral  franchise  on  account  of  race,  color,  or 
previous  condition  of  servitude,^  and  the  like. 


H52. 


5.  Actions  in  which  federal,  question  is 


INVOLVED.  In  all  those  cases  in  which  a  suit  of  a  civil 
nature,  at  law  or  in  equity,  involves  a  federal  question,  it 
may  be  removed ;  but  a  cause  is  not  removable  when  any 
doubt  exists  as  to  whether  a  federal  question  is  pre- 
sented.^ Under  the  Judicial  Code,  as  well  as  under  the 
act  of  1887-188S,  a  cause  can  not  be  removed  as  involving 
a  federal  question,  unless  that  fact  appears  by  the  plain- 
tiff's OAvn  statement  of  his  case,^  or  by  the  answer  or  plea 
of  the  defendant;^  although  it  has  been  said  that  a  defi- 
ciency in  this  respect  in  the  complaint  or  declaration  can 
not  be  supplied  by  allegations  in  the  petition  for  removal, 
or  in  subsequent  pleadings  in  the  case  ;*  but  these  variant 
lioldings  were  due  to  the  particular  wording  of  the  par- 
ticular removal  act  under  which  the  application  was  made. 


V.   Mississippi,   162   TJ.    S.    565,    40 
L.  Ed.  1075,  16  Sup.  Ct.  Rep.  904. 
9  Dubuclet  V.  Louisiana,  103  U.  S. 
550,  26  L.  Ed.  504. 

1  Federal  Judicial  Code,  §  28,  5 
Fed.  Stats.  Ann.,  2d  ed.,  p.  16; 
Blue  Bird  Min.  Co.  v.  Larzey,  49 
Fed.  289,  292. 

See  annotations  and  authorities 
5  Fed.  Stats.  Ann.,  2d  ed.,  pp.  77 
et  seq. 

2  Caples  V.  Texas  &  P.  R.  Co., 
67  Fed.  9;  Haggin  v.  Lewis,  66 
Fed.  199;  Tennessee  v.  Union  & 
Planters'  Bank,  152  U.  S.  454,  460, 
38  L.  Ed.  511,  14  Sup.  Ct.  Rep.  654, 
reversing  53  Fed.  735;  Chappell  v. 
Wordsworth,  155  U.  S.  102,  39 
L.  Ed.  85,  15  Sup.  Ct.  Rep.  34; 
Postal  Tel.  Cable  Co.  v.  Alabama, 
155  U.  S.  482,  487,  15  Sup.- Ct.  Rep. 
192,  sub  nom.  Postal  Tel.  Cable 
Co.  V.  United  States,  39  L.  Ed. 
231;  East  Lake  Land  Co.  v.  Brown. 


155   U.   S.   488,   489,   39   L.   Ed.   85, 
15  Sup.  Ct.  Rep.  357. 

3  See:  Caples  v.  Texas  &  P.  R. 
Co.,  67  Fed.  9;  New  Orleans, 
M.  &  T.  R.  Co.  V.  Mississippi,  102 
U.  S.  135,  26  L.  Ed.  96;  Metcalf  v. 
Watertown,  128  U.  S.  586,  589,  32 
L.  Ed.  543,  544,  9  Sup.  Ct.  Rep. 
173;  Tennessee  v.  Union  & 
Planters'  Bank,  152  U.  S.  454,  460, 
38  L.  Ed.  511,  14  Sup.  Ct.  Rep. 
654,  reversing  53  Fed.  735. 

4  See:  Florida  v.  Phosphate  Co., 
74  Fed.  578;  Tennessee  v.  Union 
&  Planters'  Bank,  152  U.  S.  454, 
38  L.  Ed.  511,  14  Sup.  Ct.  Rep. 
654,  reversing  53  Fed.  735;  Postal 
Tel.  Cable  Co.  v,  Alabama,  155 
U.  S.  482,  487,  15  Sup.  Ct.  Rep. 
192,  sub  nom.  Postal  Tel.  Cable 
Co.  v.  United  States,  39  L.  Ed.  231; 
East  Lake  Land  Co.  v.  Brown,  155 
U.  S.  488,  489,  39  L.  Ed.  85,  15 
Sup.  Ct.  Rep.  357. 


584 


Ch.  XVIII.]  FEDERAL   QUESTION   INVOLVED.  §  452 

These  acts  all  being  merged  in  the  Judicial  Code,  these  re- 
quirements are  no  longer  applicable.  A  petition  which 
fails  to  allege  any  facts  from  which  the  court  may  see  that 
a  federal  question  does  actually  arise,  is  insufficient;^ 
merely  alleging  a  conclusion,  or  the  opinion  of  the  appli- 
cant, does  not  comply  with  the  removal  act.^  Whenever 
it  is  sought  to  remove  a  suit  on  the  ground  that  it  is  one 
arising  under  the  laws  of  the  United  States,  it  must  ap- 
pear from  the  petition  for  removal  and  pleadings  that 
there  is  a  question  actually  involved  in  the  suit  depending 
for  its  determination  upon  a  correct  construction  of  a  law 
of  the  United  States,  and  the  facts  averred  in  the  ^)lead- 
ings  or  in  the  petition  must  show  what  the  question  is, 
and  how  it  will  arise. '^  Corporations  of  the  United  States, 
created  by  and  organized  under  acts  of  Congress,  are  en- 
titled to  remove  to  the  federal  courts  suits  against  them 
in  the  state  courts,  as  ''arising  under  the  laws  of  the 
United  States";^  but  it  has  been  said  that  this  rule  does 
not  apply  to  corporations  organized  under  the  laws  of  a 
territory,  and  upon  which,  after  their  organization,  cer- 
tain rights  and  privileges  are  conferred  by  act  of  con- 
gress.® 

Foreign  corporation  jointly  sued  with  a  local  defendant, 
the  corporation  being  chartered  under  an  act  of  congress, 


6  See:  Fitzgerald  v.  Missouri 
Pac.  R.  Co.,  45  Fed.  812;  Los  An 
geles  Farming  &  Milling  Co.  v, 
Hoff,  48  Fed.  340. 

c  Trafton  v.  Nougues,  4  Sawy 
183,  4  Cent.  L.  J.  228,  Fed.  Cas 
No.  14134. 

"  Walker  v.  Richards,  55  Fed 
129.     See   State  v.   Southern  Pac 


Pacific  Railroad  Removal  Cases, 
29  L.  Ed.  319,  reversing  31  Kan. 
388,  2  Pac.  605.  59  Tex.  349,  62 
Tex.  227,  3  McCr.  578,  16  Fed. 
292;  Butler  v.  National  Home  for 
Disabled  Soldiers,  144  U.  S.  64, 
36  L.  Ed.  346,  12  Sup.  Ct.  Rep. 
581;  Knights  of  Pythias  v.  Kalin- 
ski,  163  U.  S.  289,  41  L.  Ed.  163, 
16  Sup.  Ct.  Rep.  1047. 


Co.,  23  Ore.  424,  31  Pac.  960.  o  Conlon  v.  Oregon  Short-Line  & 

•s  Supreme  Lodge  Knights  of  U.  N.  R.  Co.,  21  Ore.  462,  28  Pac. 
Pythias  v.  Hill,  76  Fed.  468;  Union  501;  Conlon  v.  Oregon  Short-Line 
Pac.  R.  Co.  V.  Myers,  115  U.  S.  1,  &  U.  N.  R.  Co.,  23  Ore.  499,  32 
5   Sup.   Ct   Rep.   113,  sub   n  o  m.      Pac.  397. 

585 


§  453  CODE  PLEADING  AND  PRACTICE.  [Pt,  I, 

the  suit  is  one  ''arising  under  the  laws  of  the  United 
States, ' '  and  removable  to  the  federal  district  court  of  the 
proper  district,  on  petition  of  both  defendants  ;^"  and  an 
action  brought  against  a  federal  corporation  and  its  em- 
ployees, in  tort,  to  establish  a  joint  liability  for  injuries 
caused  by  negligence,  is  also  a  suit  arising  under  the  laws 
of  the  United  States  and  removable.^^ 

Promissory  note  the  subject-matter  of  a  suit  by  a  per- 
son claiming  to  be  a  bona  fide  holder  for  value  before 
maturity,  is  not  a  suit  ''arising  under  the  laws  of  the 
United  States"  within  the  meaning  of  the  removal  act, 
because  the  makers  of  the  note  relied  for  their  defense 
upon  the  provisions  of  certain  federal  statutes,  under 
which  the  transaction  on  which  the  note  is  based, — Indian 
allotments, — is  prohibited,  and  for  that  reason  the  suit 
is  not  removable. ^^ 

§  453.    6.  Actions  against  public  officers,  etc. 

Any  civil  suit  or  criminal  prosecution,  commenced  in  a 
state  court  against  any  officer,  or  any  person  acting  under 
his  authority,  appointed  under  and  acting  by  authority  of 
the  federal  revenue  laM^s,  on  account  of  any  act  done 
imder  color  of  his  office  or  of  the  law  under  which  he 
is  acting;  on  an  account  of  any  right,  title,  or  authority 
claimed  by  such  officer  or  any  one  acting  under  him;  or 
by  any  person  holding  property  or  estate  derived  from 
any  such  officer,  and  the  suit  affects  the  validity  of  any 
revenue  law ;  or  against  any  person  for  an  act  done  while 
acting  for  either  House  of  Congress  in  the  discharge  of 
Ms  official  duty,  the  suit  or  prosecution  is  removable  to 
the   proper   federal   district   court,^    regardless    of   the 

10  Texas  &  P.  R.  Co.  v.  Eastin,  Sup.  Ct.  Rep.  423,  affirming  20 
214   U.   S.   153,  53    L.    Ed.   946,   29      Okla.  274,  95  Pac.  457. 

Sup.  Ct.  Rep.  564.  i  Federal  Judicial  Code,   §  33.   5 

11  Dunn,  In  re,  212  U.  S.  374,  53  Fed.  Stats.  Ann.,  2d  ed.,  p.  380. 
L.   Ed.  558,  29  Sup.  Ct.  Rep.  299.  Siiit  to  recover  money  received 

12  Williams  v.  First  Nat.  Bank,  as  carrier's  charges  on  imported 
216   U.   S.  582,   54    L.    Ed.   625,   30  goods,     removable.  —  Cleveland, 

586 


cll.  XVIII. ]  REMOVAI^ Et^FECT    OX    PARTIES.  §  451 

amount  involved  in  sucli  suit,-  or  the  citizenship  of  the 
parties;^  and  such  right  of  removal  is  not  defeated  by 
tlie  fact  that  such  defendant  officer  denies  in  his  answer 
that  the  act  charged  was  done/  or  that  he  is  cliarged 
as  a  wrongdoer.^  Marshal  sued  in  action  for  damages 
for  seizing  goods  under  attachment  from  a  United  States 
circuit  court,  the  action  is  one  arising  under  the  laws  of 
the  United  States,  and  is  removable  from  tlie  state  court 
to  the  federal  district  court  of  the  proper  district.^ 

Aliens  suing  civil  officers  of  the  United  States  in  the 
courts  of  a  state  other  than  that  in  Avhich  such  officer 
resides,  the  action  is  removable  to  the  federal  district 
court  in  and  for  the  district  in  which  such  officer  was 
served/ 

§  454.  Effect  of  change  in  parties  after  re- 
moval. After  a  cause  has  been  properly  removed  from  a 
state  court  to  a  federal  district  court,  the  jurisdiction  of 
the  state  court  having  been  divested  and  that  of  the  fed- 
eral court  invested,  the  introduction  of  new  parties  can 

C.    &   C.   R.   Co.   V.    McClung,    119  marshal!  is  acting  under  authority 

U.   S.   454,  30    L.    Ed.   465,   7   Sup.  of  that  law,  and  a  criminal  prose- 

Ct.  Rep.  262.  cution  for  such  act  is  removable. 

li  Wood   V.   Matthews,   3   Woods  ~^  avis  v.    South   Carolina,   107 

496,  Fed.  Cas.  No.  5352;    Venable  U.  S.  597,  27  L.  Ed.  574,  2  Sup.  Ct. 

V.  Richards,  105  U.  S.  636,  26  L.  Ed.  ^^p.  636. 

1196.  Charge  of  murder  against  a  rev- 

3  Philadelphia,  Atlantic  &  P.  Tel.  ^"""^  ^^^^^  committed  while  acting 

Co.  V.  The  Collector,  72  U.  S    (5  '°  "°®  °^  ^"^^  or  under  color  of  of- 

Wal.)   720,  sub  nom.  Philadelphia,  ^^^    ^^    removable.-Tennessee    v. 

City  of,  V.  Diehl,  18  L.  Ed.  614.  ^^^^^'  ^^^  U.  S.  257.  25  L.  Ed.  64S. 

See  Fogg,   Ex  parte,   38   Tex.    Cr. 


4  Cleveland,  C.  &  C.  R.  Co.  v, 
McClung,  119  U.  S.  454,  30  L.  Ed. 
465,  7  Sup.  Ct.  Rep.  262,  affirming 
15  Fed.  905. 


Rep.  589,  40  L.  R.  A.  215,  44  S.  W. 
294. 

6  Bock  V.  Perkins,  139  U.  S.  628, 

35  L.  Ed.  314,  11  Sup.  Ct.  Rep.  677. 

r.Van   Zandt  v.   Maxwell,   2  as  to   causes  removable,   see   5 

niatchf.  421,  Fed.  Cas.  No.  16884;       Fed.  Stats.  Ann.,  2d  ed.,  p.  583. 

Tennesee  v.  Davis,  100  U.  S.  257,  as  to  causes  not  removable,  see 

2-^  L.   Ed.  648.  Id.,  p.  584. 

Arresting  accused  in  attempting  7  Federal  Judicial  Code,   §  34,   5 

to   enforce   revenue   laws,   deputy      Fed.  Stats.  Ann.,  2d  ed.,  p.  386. 

587 


§  45'4  CODE   PLEADING   AND   PRACTICE.  [Pt.  I, 

not  have  the  effect  to  divest  the  federal  district  court  of 
jurisdiction^  and  reinvest  jurisdiction  in  the  state  court 
from  which  the  cause  was  removed.^  An  intei-A^enor,  or  a 
person  who  purchases  property  pendente  lite  and  is  made 
a  party,  comes  into  the  suit  with  all  the  disability  of  the 
other  parties  defendant,  as  respects  the  right  of  removal 
or  of  remand  of  the  suit  at  the  time  that  he  comes  in.' 
And  when  a  partnership  is  sued  by  service  of  process 
upon  one  of  the  co-partners  and  such  co-partner's  right 
of  removal  is  lost,  a  subsequent  service  upon  another  co- 
partner will  not  give  him  a  right,  as  to  removal,  superior 
to  or  in  addition  to  that  of  the  co-partner  served,  whose 
right  has  been  lost.*  And  the  same  is  true  in  respect  to 
the  dismissal  of  parties  defendant.  Thus,  where  a  resi- 
dent and  a  nonresident  defendant  are  joined  in  an  action, 
and  the  cause  is  removed  to  the  federal  district  court  be- 
cause of  diversity  of  citizenship,^  the  subsequent  dis- 
missal of  the  cause  as  to  such  nonresident  defendant  will 
not  divest  the  federal  district  court  of  jurisdiction;  and 
in  such  a  case,  and  while  the  cause  is  still  pending  in  the 
state  court,  but  after  the  time  prescribed  in  which  to 
apply  for  a  removal  has  passed,  the  dismissal  of  the  cause 
as  to  the  resident  defendant,  over  the  objection  of  the 
plaintiff,  will  not  divest  the  state  court  of  jurisdiction  to 
hear  and  determine  the  cause,  or  give  to  the  nonresident 
defendant  a  renewed  right  of  removal  to  the  federal  dis- 
trict court.^ 

1  Stewart  v.  Dunham,  115  U.  S.  4  Fletcher  v.  Hamlet,  116  U.  S. 
61,  29  L.  Ed.  329,  5  Sup.  Ct.  Rep.  408,  29  L.  Ed.  679,  6  Sup.  Ct.  Rep. 
1163.  426 

2  Phelps  V.  Oaks,  117  U.  S.  236.  ,  ^^  ^^   ^.^             ^^  citizenship 

29  L.  Ed.  888,  6  Sup.  Ct.  Rep.  714.  ^     *  , 

_,  '     „,  „«    T^  J       ^s  a  ground  of  removal,  see,  ante, 

See:    Bland   v.    Fleeman,    29    Fed. 

S  448 
673;  Burnham  v.  First  Nat.  Bank,      *        • 

3  C.  C.  A.  489,  10  U.  S.  App.  485,  «  Lathrop,  H.  &  S.  Co.  v.  Interior 

53  Fed.  166.  Construction  &  Imp.  Co.,  215  U.  S. 

3  Jefferson  v.  Driver,  117  U.  S.  246,  54  L.  Ed.  177,  30  Sup.  Ct.  Rep. 
272,  29  L.  Ed.  897,  6  Sup.  Ct.  Rep.  76. 

729. 

GS3 


ch.  xviii.]  amount  in  controversy.  §  455 

§  455.  Amount  in  controversy  as  affecting  removal. 
It  is  especially  provided  that  removal  of  causes  to  the  fed- 
eral courts  is  confined  to  cases  ''of  which  the  district 
courts  of  the  United  States  are  given  original  jurisdic- 
tion,"^ and  this  applies  not  only  to  the  nature  of  the  suit 
or  proceeding,-  but  also  as  to  the  amount  involved  in  the 
controversy.  As  the  minimum  amount  in  controversy  of 
which  the  federal  district  courts  are  given  original  juris- 
diction is  when  the  amount  exceeds  three  thousand  dol- 
lars, exclusive  of  interest  and  costs, ^  it  follows  that  any 
suit  which  does  not  involve  exclusive  interest  and  costs, 
a  sum  in  excess  of  three  thousand  dollars,  is  not  remov- 
able,^ except  in  the  case  of  an  action,  against  a  public 
officer,^  or  in  other  cases  in  which  it  is  especially  provided 
that  the  cause  shall  be  removable  regardless  of  the  amount 
in  controversy.^  But  it  has  been  said  that  a  cause  in 
which  the  amount  in  controversy  between  the  parties  is 
exactly  three  thousand  dollars,  or  the  minimum  amount 
that  must  be  involved,  the  suit  is  not  removable.'^  The 
"amount  in  controversy"  determining  a  right  of  removal 
is  the  sum  of  money^  or  the  damages'*  claimed  by  the 

1  Federal  Judicial  Code,  §  28,  5  885  (interstate  commerce  law  in- 
Fed.  Stats.  Ann.,  2d  ed.,  p.  16.  volved). 

Original    jurisdiction    in   federal  5  See,   ante,   §  453. 

district  court  a  prerequisite  to  re-  6  Law   regulating    commerce    In- 

moval. — Barker  &   Bro.,  H.  G.,  v.  volved,  under  Judicial  Code,  §  24, 

Pinkham,  211  Fed.  728;   Missouri,  par.   8,   it  has   been   said   cause 

K.  &  T.  R.  Co.  of  Texas  v.  Smitli  removable    regardless    of    amount 

(Tex.  Civ.  App.),  164  S.  W^.  885.  involved  in  the  controversy. — See: 

2  See,  ante,  §  440.  Orr  v.  Baltimore  &  O.  R.  Co.,  83 

3  Federal  Judicial  Code,  §  24,  par.  Misc.  (N.  Y.)  221,  145  N.  Y.  Supp. 
1,  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  839.  378;    Missouri,  K.  &  T.  R.  Co.  of 

4Hallan  v.  Tillinghast,  75  Fed.  Texas  v.  Smith   (Tex.  Civ.  App.), 

489    (federal    question,    see,    ante,  164  S.  W.  885. 

§  452) ;    Casey  v.  Baker,  211  Fed.  7  Federal  Judicial  Code,   §  24,   4 

247;    Pennsylvania  Co.,  In  re,  137  Fed.   Stats.  Ann.,  2d  ed.,  pp.  838, 

U.  S.  451,  34  L.   Ed.  738,  11  Sup.  842;   Kaufman  v.  Remstorm  Sons 

Ct.  Rep.  141   (prejudice  and  local  Co.,  I.,  188  Fed.  544. 

influence,   see,   ante,   §  450) ;    Mis-  s  Kanouse   v.   Martin,   56   U.   S. 

souri,  K.  &  T.  R.  Co.  of  Texas  v.  (15  How.)   198,  14  L.  Ed.  660. 

Smith   (Tex.  Civ.  App.),  164  S.  W.  ■.'  Gordon  v.  Longest,  41  U.  S.  (16 

589 


§  456  CODE  PLEADING  AND  PRACTICE,  [Pt.  I, 

plaintiff  in  his  complaint  or  declaration,  even  though  the 
claim  of  the  plaintiff  may  be  incapable  of  proof,  or  only 
a  portion  of  it  can  be  established.^^  Thus,  where  judg- 
ments between  the  parties  amounting  in  the  aggregate  to 
more  than  three  thousand  dollars,  exclusive  of  interest 
and  costs,  are  sought  to  be  restrained  on  the  ground  of 
fraud,  the  action  is  removable  to  the  federal  district  court, 
notwithstanding  the  fact  that  no  one  of  the  judgments 
involved  is  sufficient  in  amount  to  give  jurisdiction  for 
removal  ;^^  but  it  has  been  held  that  claims  assigned  to 
the  plaintiff  by  persons  whose  citizenship  does  not  appear 
either  in  plaintiif 's  complaint  or  in  the  petition  for  re- 
moval can  not  be  added  to  the  plaintiff's  own  claim  or 
demand  set  out  in  his  complaint  in  order  to  confer  juris- 
diction for  removal.^^  The  demand  of  the  plaintiff  must 
be  for  a  money  judgment  in  the  amount  conf erring- 
jurisdiction  for  removal ;  if  it  is  manifest  from  the  com- 
plaint or  declaration  that  there  can  be  no  money  judg- 
ment,— e.  g.  an  action  to  set  aside  a  divorce,^^ — there  can 
be  no  removal. ^^ 

§  456.  Procedure  to  remove — In  general,.  The  pro- 
cedure for  removal,  on  application  of  any  one  entitled  to 
remove  a  cause  from  the  state  court  to  the  federal  district 

Pet.)    97,  10   L.   Ed.  900;   Kanouse  13  Casewell  v.  Casewell,  120  111. 

V.  Martin,  41  U.  S.  (15  How.)  198,  377,  11  N.  E.  342.     See:   Bowman 

14  L.  Ed.  660;  Smith  v.  Greenliow,  y.  Bowman,  30  Fed.   849;    Barber 

109  U.   S.   669,   27    L.   Ed.   1080,   3  ^   g^rber,  62  U.  S.  (21  How.)  582, 

Sup.  Ct.  Rep.  421;  North  American  ^^g  |_    ^^    226 

Transportation   &   Trading  Co.   v.  '        '         '     ,^  „^      ..r-  tt    ^ 

MorriL.  178  U.  S.  262.  44  L.  Ed.  ^^  Kurtz  v.   Moffitt,   115  U.   S. 

1061,  20  Sup.  Ct.  Rep.  869.  ^87.  29  L.  Ed.  458,  6  Sup.  Ct.  Rep. 

10  Kanouse  v.  Martin,  56  U.  S.  148;  Durham  v.  Seymour.  161 
(15  How.)   198,  14   L.  Ed.  660.  U-   S.  235,  40   L.   Ed.   682.  16   Sup. 

11  Marshall  v.  Holmes,  141  U.  S.  Ct.  Rep.  452;  Perrine  v.  Slack,  164 
589,  35  L.  Ed.  870,  12  Sup.  Ct.  Rep.  U.  S.  452,  41  L.  Ed.  510,  17  Sup. 
62.  Ct.  Rep.  79;   De  la  Ram  v.  De  la 

12  North  American  Transporta-  Ram,  201  U.  S.  303,  50  L.  Ed.  765, 
tion  &  Trading  Co.  v.  Morrison,  26  Sup.  Ct.  Rep.  485;  Horn  v. 
178  U.  S.  262,  44  L.  Ed.  1061,  20  Mitchell,  243  U.  S.  247,  61  L.  Ed. 
Sup.  Ct.  Rep.  869.  1,  37  Sup.  Ct.  Rep.  297. 

590 


eh.  XVIII.] 


PROCEDURE  FOR  REMOVAL. 


§456 


court  for  any  of  the  causes  or  grounds  provided,^  is  gov- 
erned entirely  by  the  provisions  of  the  federal  Judicial 
Code,-  and  consists  of  (1)  a  notice  of  the  petition  and 
bond  prior  to  filing,  (2)  the  petition  for  removal  dra^vTi  to 
meet  the  requirements  under  the  particular  cause  or 
ground  of  removal,  (3)  the  bond  for  removal,  (4)  the 
filing  of  the  petition  and  the  bond  in  the  state  court,  and 
(5)  entering  in  the  federal  district  court  a  certified  copy 
of  the  record  in  the  state  court. ^  Except  in  those  cases 
in  which  the  ground  of  removal  is  prejudice  or  local 
influence,*  the  first  four  steps  in  the  procedure  for  re- 
moval, as  above  enumerated,  must  be  taken  '*  before  the 
time  the  defendant  is  required  by  the  laws  of  the  state 
or  the  rule  of  the  state  court  in  which  the  suit  is  brought 
to  answer  or  plead  to  the  declaration  or  complaint  of  the 
plaintiff."^  This  provision  is  strictly  construed,^  and  all 
the  provisions  of  the  statute  and  the  various  steps  above 
enumerated  must  be  complied  with  in  the  order  set  forth. '^ 


1  As  to  who  entitled  to  remove, 
see,  ante,  §  442. 

2  §  29,  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  235. 

3  Id. 

4  See,  ante,  §  450. 

0  Judicial  Code,  §  29,  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  235. 

As  to  time  In  which  defendant 
is  required  to  plead  in  the  various 
jurisdictions,  see  notes  and  cases, 
5  Fed.  Stats.  Ann.,  2d  ed.,  pp.  239- 
265. 

Having  regard  to  the  natural 
meaning  of  language,  and  to  the 
history  of  legislation  upon  this 
subject,  the  only  reasonable  in- 
ference is  that  congress  contem- 
plated that  the  petition  for 
removal  should  be  filed  in  the  state 
«ourt  as  soon  as  the  defendant 
was  required  to  make  any  defense 
whatever  in  that  court,  so  that,  if 
the  case  should  be  removed,  the 


validity  of  any  and  all  his  de- 
fenses should  be  tried  and  de- 
termined in  the  district  court  of 
the  United  States.— Martin,  Admr. 
V.  Baltimore  &  O.  R.  Co.,  151  U.  S. 
673,  687,  38  L.  Ed.  311,  316,  14  Sup. 
Ct.  Rep.  633,  638. 

6  Daugherty  v.  Western  Union 
Tel.  Co.,  61  Fed.  183;  Higson  v. 
North  River  Ins.  Co.,  184  Fed.  165. 

7  See,  among  other  cases.  Mid- 
land Valley  R.  Co.  v.  Hoffman  Coal 
Co.,  91  Ark.  180,  120  S.  W.  380; 
Wilson  V.  Big  Joe  Black  Coal  Co., 
135  Iowa  531,  14  Ann.  Cas.  266, 
113  N.  W.  348;  Cincinnati,  N.  O. 
&  T.  P.  R.  Co.  V.  Evans,  129  Ky. 
152,  110  S.  W.  844;  Lilienthal  v. 
Carpenter,  148  Ky.  50,  146  S.  W. 
2;  Chicago,  B.  &  Q.  R.  Co.  v.  Little 
Tarkio  Drainage  Dist.,  237  Mo.  86, 
139  S.  W.  572;  Higson  v.  North 
River  Ins.  Co.,  153  N.  C.  35,  68 
S.  E.  920;  Manley  v.  Onley,  32  Fed. 


591 


§  456  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

A  mere  conditional  application  for  a  removal  of  a  case  is 
not  sufficient  f  and  a  journal  entry  in  the  federal  district 
court  which  is  simply  a  finding  of  that  court  that  the  ap- 
plication for  removal  is  sufficient  to  entitle  the  applicant 
to  a  removal  does  not  constitute  a  removal,  or  oust  the 
state  court  of  jurisdiction.'^  A  removal  being  applied  for 
by  a  defendant  who  is  described  in  another  proceeding 
as  residing  in  a  named  state  will  not  prevent  him  from 
slio\\dng  that  he  resides  in  another.^''  ''At  any  time  be- 
fore" defendant  is  required  to  answer  or  plead,  the 
proceeding  for  removal  may  be  inaugurated  under  the 
Judicial  Code;^^  and  it  has  been  held  that  an  affidavit 
required, — e.  g.  on  ground  of  prejudice  or  local  influ- 
ence,^-— made  eleven  days  before  the  suit  was  brought, 
is  as  effective  for  the  removal  of  the  case,  within  the 
purview  of  the  statute,  as  if  made  after  the  suit  was 
brought,  where  it  sufficiently  identifies  the  suit  actually 
brought.^^  The  objection  of  multifariousness  or  mis- 
joinder is  not  available  to  defeat  the  right  of  removal;^"* 
that  objection  must  be  taken  by  demurrer  or  answer.^'^ 

708;    Page  v.  Day,  74  Fed.  977;  stipulation  or  order  of  court,  see 

Gregory  v.  Boston  Safe-Deposit  &  note,  14  Ann.  Gas.  268. 

T    Co     88  Fed.  3;    Oliver  v.  Iowa  «  Manning  v.  Amy,  140  U.  S.  137, 

Cent.  R.  Co.,  102  Fed.  37;   Key  v.  35  L.  Ed.  386,  11  Sup.  Ct.  Rep.  757. 

,^r     .  ^^     J.     ^       r^     1    n>^     ooT  ^  Pennsylvania    C  o.    v.    Bender, 

Western   Kentucky  Coal   Co..   237      ^^^   ^    ^  ^^   ^_   ^^    ^^^^   ^^ 

Fed.    258;    Martin.   Admr.    v.   Bal-  ^^^    ^^    ^^^    ^^^ 

timore  &  O.  R.  Co.,  151  U.  S.  673,  :o  Reynolds  v.  Adden,  136  U.  S. 

687,  38  L.  Ed.  311,  316,  14  Sup.  Ct.  343^  34  l.  Ed.  360,  10  Sup.  Ct.  Rep. 

Rep.   633,  638;    Goldy  v.  Morning  §43 

News,  156  U.  S.  518,  524,  39  L.  Ed.  n  §  29,  5  Fed.  Stats.  Ann..  2d  ed.. 

517,    519,   15    Sup.   Ct.   Rep.    559;  p,  235. 

Wilcox    &    Gibbs    Sewing-Macbine  12  See,  ante,  §  450. 

Co.  v.  Follett,  2  Flip.  263,  Fed.  Cas.  13  Canal   &   C.   Street  R.  Co.  v. 

No.  17643;  Wabash  R.  Co.  v.  Brow,  jjart,  144  U.  S.  654,  29  L.  Ed.  226, 

164  U.   S.  271,  277,  41   L.   Ed.  431,  5   sup.  Ct.  Rep.  1127. 

434,  17  Sup.  Ct.  Rep.  126.  14  Barney  v.  Latham,  103  U.  S. 

As  to  extension  of  time  in  which  205,  26  L.  Ed.  514. 

to    file    petition    for    removal    by  15  Id. 

592 


ch.  XVIII.] 


NOTICE  OF  PETITION   AND   BOND. 


§§457,458 


§457. 


1.    Notice  of  petition  and  bond.    The  fed- 


eral Judicial  Code  specifically  requires  that  written  notice 
of  the  petition  for  and  bond  on  removal  ''shall  be  given 
the  adverse  party  or  parties  prior  to  filing  the  same."^ 
If  this  condition  is  not  complied  Avith,  and  not  waived,^ 
the  federal  district  court  acquires  no  jurisdiction  and  the 
state  court  is  not  divested  of  jurisdiction,^  and  the  cause 
will  be  remanded^  on  application  therefor.^  The  time 
when  the  written  notice  shall  be  served  not  being  pro- 
\'ided  in  the  Judicial  Code,  it  is  thought  that  the  practice 
in  the  state  courts  in  which  the  suit  is  brought  Avill  govern 
in  this  matter.^ 


§458. 


Purpose  and  sufficiency  of  the  no- 


tice.  It  has  been  said  that  the  only  purpose  the  written 


1  Federal  Judicial  Code,  §  29,  5 
Fed.  Stats.  Ann.,  2d  ed.,  p.  235. 

Notice  not  required  prior  to  this 
enactment. — See  annotations  and 
cases  5  Fed.  Stats.  Ann.,  2d  ed., 
pp.   67-69. 

2  Failure  to  object  for  want  of 
notice  has  said  to  be  a  waiver  of 
the  defect,  and  that  the  right  to 
notice  may  be  waived  at  the  elec- 
tion of  the  party  entitled  thereto. 
— Booki  V.  Pullman  Co.,  220  Mass. 
71,  107  N.  E.  418. 

This  doctrine  is  thought  to  be 
open  to  serious  doubt.  If  the 
written  notice  i  s  mandatory,  as 
all  the  courts  hold,  and  jurisdic- 
tions as  some  strongly  intimate, 
as  pointed  out  hereafter,  there  can 
be  no  "election"  on  the  part  of  the 
party  entitled  to  notice. 

State  court  without  power  to 
pass  upon  the  question  whether 
written  notice  was  given,  or 
whether  it  was  waived  by  the 
party  entitled  thereto. — Booki  v. 
Pullman  Co.,  220  Mass.  71,  107 
N.  E.  418. 


3  The  authorities  may  not  go 
quite  as  far  as  the  text;  but  they 
hold  the  provision  as  to  notice 
mandatory,  and  being  mandatory 
is  absolutely  essential  to  the  valid- 
ity of  the  attempted  removal, 
and  that  such  notice  is  jurisdic- 
tional is  strongly  intimated  in  the 
cases  cited  to  this  paragraph. — 
See:  Gains  v.  Southern  Pac.  Co., 
198  Fed.  432;  United  States  v. 
Sessions,  123  C.  C.  A.  570,  205  Fed. 
502. 

See,  also,  cases  cited  footnote 
5,  this  section. 

4  As  to  remand,  see,  post,  §§  475 
et  seq. 

5  See:  Gains  v.  Southern  Pac. 
Co.,  198  Fed.  432;  United  States 
v.  Sessions,  123  C.  C.  A.  570,  205 
Fed.  502;  Loland  v.  Northwest 
Stevedore  Co.,  209  Fed.  626;  War- 
ner v.  Bissinger,  210  Fed.  96; 
Arthur  v.  Maryland  Casualty  Co., 
216   Fed.   386. 

6  Loland  v.  Northwest  Steve- 
dore  Co.,  209  Fed.  626,  citing  Chase 
V.  Erhardt,  198  Fed.  305. 


I  Code  PI.  and  Pr.— 38 


593 


§459  CODE   PLEADING   AND   PRACTICE.  [l*t-l, 

notice  required  by  the  Judicial  Code  can  serve  is  to  notify 
the  opposite  party  that  all  future  proceedings  in  the  case 
are  about  to  be  transferred  to  another  tribunal.  Under  the 
provisions  of  the  Judicial  Code^  the  filing  of  the  petition 
and  bond  divests  the  state  court  of  jurisdiction  and  in- 
vests the  jurisdiction  in  the  federal  district  court  of  the 
district  in  which  the  state  is  located  in  the  courts  of  which 
the  suit  was  commenced.-  The  party  upon  whom  the 
notice  is  served  can  not  object  in  the  state  court  either  to 
the  sufficiency  of  the  petition  or  of  the  bond,^  and  the  state 
court,  after  the  filing  of  the  petition  and  bond,  whether 
they  are  sufficient  or  not,  is  without  power  to  pass  upon 
either.^  This  being  the  case,  it  would  seem  that  any  writ- 
ten notice  served  at  any  time  before  the  actual  filing  of 
the  petition  and  bond  for  removal  will  be  sufficient,^ 
without  stating  the  exact  date  on  which  the  petition  and 
bond  will  be  filed,**  or  stating  that  it  will  be  filed  on  the 
day  of  the  date  of  the  notice.'^ 

§  459.    2.  Petition  foe  removal. — In  general.    It 

has  been  held  that  a  petition  for  the  removal  of  a  case 
f]-om  a  state  to  the  federal  district  court  of  the  proper 
district  should  properly  allege  the  service  of  the  written 
notice^  required  to  be  served ;-  the  service  of  such  a  notice, 
being  mandatory,  is  necessary  to  divest  the  state  court 

1  §  59,  5  Fed.  Stats.  Ann.,  2d  ed.,  6  Porter  v.  General  Banking  Co., 
p.  235.  213  Fed.   697;    Cropsey  v.   Sun 

2  Id.;  Hansford  v.  Stone-Ordean-  Printing  &  Publishing  Assoc,  215 
Wells  Co.,  201  Fed.  185.  Fed.  132. 

"On  or  before"  a  future  date 
named,  and  filed  tliree  days  before 
the  date  named. — Cropsey  v.  Sun 
220  Mass.  71,  107  N.  E.  418;  Crop-  p^j^^.^^  ^  Publishing  Assoc,  215 
sey  V.  Sun  Printing  &  Publishing      p^^    ^^^ 

Assoc.  215  Fed.  132;    Marshall  v.  ^  Han's  ford    v.    Stone-Ordean- 

Holmes,  141  U.  S.  589,  35  L.   Ed.      ^^j,^  ^^^  ,01  Fed.  185. 
870,  12  Sup.  Ct.  Rep.  62.  ^  ^^  ^^  ^^.^^^^  ^^^.^^  required, 

Compare:  Ante,  §  456,  "footnotes      ggg,  ante,  §457. 
6-9,  and  text  going  therewith.  o  Booki  v.  Pullman  Co.,  220  Mass. 

5  Chase  v.  Erhardt,  198  Fed.  305.      71,  107  N.  E.  277. 

594 


3  Id. 

4  Id.  See:  Booki  v.  Pullman  Co., 


eh.  XVIII.]  AMOUNT  IN   CONTROVERSY.  §  460 

of  jurisdiction  and  to  confer  jurisdiction  on  the  federal 
district  court.^  The  Judicial  Code^  provides  that  the 
party  seeking  a  change  of  venue  shall  make  and  file  a 
petition  therefor.  This  provision  is  to  receive  a  strict 
construction,^  and  for  that  reason  must  be  literally  and 
strictly  complied  with;«  and  such  removal  can  not  be 
effected  by  a  mere  motion"  in  the  state  court,  not^dth- 
standing  the  fact  that  a  *' petition,"  within  the  purview 
of  the  statute,  is  merely  a  written  request  in  legal  lan- 
guage,^ and  a  motion  may  be  in  writing  asking  or  request- 
ing removal ;  neither  can  the  removal  be  effected  by  mere 
consent  or  stipulation  of  the  parties.^ 

<§>  460. (1.)  Averments  as  to  amount  in  con- 
troversy. We  have  already  seen  that  no  case  is  remov- 
able of  which  the  federal  district  court  has  not  original 
jurisdiction,!  and  also  that  such  district  court  is  given 
original  jurisdiction  only  in  cases  in  which  the  amount  in 
controversy  exceeds,  exclusive  of  interest  and  costs,  the 
sum  of  three  thousand  dollars  p  hence  a  petition  for 
removal  must  show  that  the  jurisdictional  amount  is  in- 
volved in  the  controversy  between  the  parties.^  This  is 
the  essential  element  in  the  petition  for  removal,  after  the 
formal  allegation  of  service  of  written  notice;^  and  the 

3  See  discussion,  ante,  §  456,  and  kersburg  First  Nat.  Bank  v. 
authorities  in  footnotes  5-9.  Prager,   34   C.   C.  A.   51    63  U    S 

4  §  29,  5  Fed.  Stats.  Ann.,  2d  ed.,  App.    703,    91    Fed.    689;    People's 
p.  235.  Bank  v.  Calhoun,  102  U.  S.  56,  26 

5  See,  ante,   §456,  footnote  6.  '"    ^^'   ^^^'    Hegler   v.    Faulkner. 

6  Id.,  footnote  7.  i^^  ^-  ^-  ^^^'  ^^  «-•  Ed.  210.  8  Sup. 

Ct.  Rep.  1203. 

7  Key  V.  West  Kentucky  Coal  Compare:  Mackay  v  Uinta 
Co.,  237  Fed.  258;  Nelson  v.  Black  Devel.  Co..  229  U  S  173  57  L  Ed 
Diamond  Min.  Co..  237  Fed.  204.          ^SS.  33  Sup.  Ct.  Rep    638         *       " 

8  See  Shaft  v.  Phoenix  Mut.  Life  j  gee.  ante,  §  455 
Ins.  Co..  67  N.  Y.  544,  23  Am.  Rep.           o  jjj 

138,   reversing   8    Hun   632;    State  3  Middleton  v.  Middleton,  87  Iowa 

Bank  v.  First  Nat.  Bank,  34  N.  J.  9Q9    cd  kt    w    i^-j.    d            i 

t:,       ,_„     „       ,            ^             ^  '^^'^'  ^^  ^-   ^-   i'*3;    Pennsylvania 

Eq.  450;    Fenstermacher  v.  State,  co..  In  re,  137  U.  S.  451    34  L.  Ed. 

19  Ore.  504.  25  Pac.  142.  ,,,^  ,,  S^,p    ^^    ^^^    ^^^^ 

i»  Foley,  In  re,  76  Fed.  390;  Par-  4  See,  supra,  §  459. 

595 


§460 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


state  court,  in  determining  the  amount  involved  in  the 
controversy  is  required  to  examine  the  complaint  or 
declaration  filed  in  the  action  as  well  as  the  petition  for 
removal,^  although  it  has  been  said  to  be  immaterial  that 
the  amount  involved  in  the  controversy  is  not  stated  in 
the  complaint  or  declaration  of  the  plaintiff  where  it  is 
sufficiently  alleged  in  the  averments  in  the  petition  for 
removal.'^  But  where  the  complaint  or  declaration  in  the 


5  Springer  v.  Bricker,  165  Ind. 
532,  76  N.  E.  114;  Bacon  v.  Iowa 
Cent.  R.  Co.,  157  Iowa  493,  137 
N.  W.  1011;  Phoenix  Life  Ins.  Co. 
V.  Saettel,  33  Ohio  St.  278. 

Petition  need  not  state  amount 
in  controversy  where  a  jurisdic- 
tional amount  is  fully  and  clearly 
set  forth  in  the  complaint  or  decla- 
ration of  the  plaintiff  filed  in  the 
case. — Phoenix  Life  Ins.  Co.  v. 
Saettel,  33  Ohio  St.  278. 

6  See:  Middleton  v.  Middleton, 
87  Iowa  292,  54  N.  W.  143;  Bani- 
gan  V.  Worcester,  City  of,  30  Fed. 
392;  Egan  v.  Chicago,  M.  &  St.  P. 
R.  Co.,  53  Fed.  675;  South  Dakota 
Cent.  R.  Co.  v.  Chicago,  M.  &  St. 
P.  R.  Co.,  73  C.  C.  A.  176,  141  Fed. 
578;  Order  of  Railroad  Teleg- 
raphers V.  Louisville  &  N.  R.  Co., 
148  Fed.  437;  Waha-Lewiston  Land 
&  Water  Co.  v.  Lewiston-Sweet- 
water  Irr.  Co.,  158  Fed.  137;  Briges 
V.  Sperry,  95  U.  S.  401,  24  L.  Ed. 
390;  Gold  Washings  &  Water  Co. 
V.  Keyes,  96  U.  S.  199,  24  L.  Ed. 
656. 

Suit  arising  under  laws  of  United 
States  the  complaint  filed  in  a  Ken- 
tucky court  did  not,  and  under  the 
state  statute  and  practice  need 
not,  show  any  amount  or  value  in 
controversy;  on  a  motion  to  re- 
mand (as  to  remand,  see,  post, 
§§  475  et  seq.)  the  question  arose 
whether  the  value  of  the  matter  in 

5 


dispute  could  be  shown  in  the 
petition  for  removal,  alone.  The 
court  said:  "Whether  we  should, 
as  to  the  question,  follow  the  rule 
in  Tennessee  v.  Union  &  Planters' 
Bank  (152  U.  S.  454,  38  L.  Ed.  511, 
14  Sup.  Ct.  Rep.  654;  Postal  Tel. 
Cable  Co.  v.  Alabama,  155  U.  S. 
487,  15  Sup.  Ct.  Rep.  192,  sub 
nom.  Postal  Tel.  Cable  Co.  v. 
United  States,  39  L.  Ed.  231;  Ore- 
gon Short-Line  &  U.  N.  R.  Co.  v. 
Skottowe,  163  U.  S.  495,  40  L.  Ed. 
1048,  16  Sup.  Ct.  Reg.  869;  Arkan- 
sas V.  Kansas  &  Texas  Coal  Co., 
283  U.  S.  185,  46  L.  Ed.  144,  29 
Sup.  Ct.  Rep.  47)  which  requires 
that  the  facts  showing  that  the 
cause  arose  under  the  constitution 
and  laws  of  the  United  States  (as 
to  federal  question,  see,  ante, 
§  452,  and,  post,  §  466)  shall  ap- 
pear by  the  plaintiff's  pleadings 
and  not  elsewhere,  or  whether  we 
shall  follow  the  rule  in  Stevens  v. 
Nichols,  130  U.  S.  230,  231,  32 
L.  Ed.  914,  9  Sup.  Ct.  Rep.  518, 
and  Ysleta,  City  of,  v.  Canda,  67 
Fed.  6,  which  permits  the  facts  of 
diverse  citizenship  (as  to  diverse 
citizenship,  see,  ante,  §  448,  and, 
post,  §  461)  to  be  shown  in  the 
petition  for  removal,  was  the  ques- 
tion to  be  solved.  We  found  it  in 
some  confusion,  some  cases  hold- 
ing one  way  and  some  the  other; 
but  upon  the  averments  of  the 
96 


Ch.  XVIII,]  AMOUNT  IN   CONTROVERSY.  §  460 

court  where  suit  brought  and  the  proceedings  on  file  show 
that  the  amount  involved  is  less  than  the  amount  required 
to  give  the  federal  district  court  original  jurisdiction,  the 
fact  that  the  petition  for  removal  states  that  the  amount 
involved  is  the  jurisdictional  amount  requisite  will  not 
make  the  cause  removable  and  the  filing  of  the  petition 
and  bond  will  not  deprive  the  state  court  of  jurisdiction.'^ 
When  the  prayer  for  judgment  in  a  complaint  is  for  a 
sum  less  than  that  set  forth  in  the  declaration,  the  sum 
demanded  in  the  ad  damnum  clause  is  the  real  amount 
involved  in  the  controversy  and  must  control  on  an  appli- 
cation for  removal,  according  to  some, — and  what  are 
thought  to  be  the  better, — authorities,^  while  other  cases 
hold  that  the  prayer  for  relief  forms  no  part  of  the  com- 
plaint or  declaration  and  that  the  sufficiency  of  amount 
in  controversy  to  confer  jurisdiction  must  be  determined 
from  the  statement  of  facts  rather  than  from  the  prayer 
for  relief;^  but  the  ad  damnum  clause  or  prayer  vnll  not 
control  when  the  allegations  of  the  complaint  show  that 

petition    for    removal,    as    now  Iowa  750,  69  N.  W.  553;   Smith  v. 

amended,    and    not    controverted  Northern  Pac.  R.  Co.,  3  N.  D.  17, 

(Deshon    v.    Cincinnati,    N.    O.    &  53  N.  W.  173;  Lalce  Erie  &  W.  R. 

T.  P.  R.  Co.,  66  C.  C.  A.  345,  133  ^o.  v.  Juday.  19  Ind.  App.  436,  49 

Fed.  471),  and  upon  the  considera-  -^^  ^-  ^'^^=    ^^'^^'^  v.   Port  Blakely 

tion    that   such    an    injunction    as  ^^*"^^^  ^°-'  ^^  ^ash.  309,  87  Pac. 


that  prayed  for,  if  granted,  would 
represent  a  considerable  money 
value  (as  to  necessity  for  "money 


339. 

See,   also,   5   Encyc.   of   PI.   and 
Pr.,   712. 

9  See:    Henry  v.   McKittrick,  42 


value,"  see,  ante,  §  455),  we  have      „         ,„^    „„  _ 

,^,  ,     ,       '  \     .       '        ,  Kan.  485,  22  Pac.  576;   Marquat  v. 

reached  the  conclusion  not  to  re-      ,,  ,'    „  ,,    „    „„' 


Marquat,  12  N.   Y.   336,  reversing 
7   How.   Pr.   417;    Tiffin  Glass   Co. 


mand    the   c  a  s  e." — Evans,    J.,   in 

Order  of  Railroad  Telegraphers  v.  -^  ,         -.  ^,  .     ^ 

T  Ml      o    XT    Ti    .^       -..o    T-i  ..  V.  Stokes,  54  Ohio  St.  157,  43  N.  E. 

Louisville  &   N.  R.  Co.,   148   Fed.  ^„^  ... 

437,  440.  "    . 

Judge  Dillon  savs:  "The  value  of 
T  Bacon  v.  Iowa  Cent.  R.  Co.,  157  the  matter  in  dispute,  for  the  pur- 
Iowa  493,  137  N.  W.  1011.  p^ge  of  removal,  is  to  be  deter- 
s  Bacon  v.  Iowa  Cent.  R.  Co.,  mined  by  reference  to  the  amount 
157  Iowa  493,  137  N.  W.  1011.  See  claimed  in  the  declaration,  peti- 
Cooper  V.  Dillon,  56  Iowa  249,  9  tion,  or  bill  of  complaint." — Dillon 
N,  W.   302;    Hiatt  v.   Nelson,    100  on  Removal  of  Causes,  §  93. 

597 


§461 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  I, 


the  sum  claimed,  and  therefore  the  amount  in  contro- 
versy, is  less  than  the  amount  for  which  judgment  is  de- 
manded in  the  prayer.^" 


^61. 


(2.)  Averments  as  to  diversity  of  citi- 


zenship.^ In  an  application  for  removal  of  cause  on  the 
ground  of  diversity  of  citizenship,  that  diversity  must  be 
made  to  clearly  appear;  and  the  petition  should  set  up 
such  facts  as,  taken  in  connection  with  other  facts  in  the 
record,  will  bring  the  applicant  within  the  provisions  of 
the  statute  and  entitle  him  to  a  removal  of  the  case.-  It  is 
not  necessary  to  entitle  to  a  removal  on  the  ground  of 
diversity  of  citizenship  that  this  jurisdictional  fact  shall 
appear  upon  the  face  of  the  complaint  filed  by  the  plain- 
tiff in  the  state  court  ;^  but  the  petition  for  removal  must 
show  this  diversity  of  citizenship,  and  shall  further  point 
out  the  particular  state  of  residence  of  each  party  in- 


10  Gorman  v.  Havird,  141  U.  S. 
206,  35  L.  Ed.  717,  11  Sup.  Ct.  Rep. 
943. 

1  Form  of  petition  for  removal 
of  causes  to  federal  court  on  ac- 
count of  diversity  of  citizenship, 
see  Jury's  Adjudicated  Forms  of 
Pleading  and  Practice,  vol.  2,  p. 
1817,  form  No.  1102. 

2  See  authorities  cited  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  282,  col.  2. 

3  See:  Grimball,  Ex  parte,  61 
Ala.  398;  Beebe  v.  Armstrong,  11 
Mart.  (La.)  440;  Adams  Express 
Co.  v.  Trego,  35  Md.  47;  Guarantee 
Co.  V.  Lynchburg  First  Nat.  Bank, 
95  Va.  480,  28  S.  E.  909;  Ladd  v. 
Tudor,  3  Woodb.  &  M.  325,  Fed. 
Cas.  No.  7975;  Levy  v.  Laclede 
Bank,  18  Fed.  193;  Burke  v.  Bunker 
Hill  &  S.  Mln.  &  Concent.  Co.,  46 
Fed.  644,  648;  Ysleta,  City  of,  v. 
Cauda,  67  Fed.  6,  distinguishing 
Chappell  V.  Watertown,  155  U.  S. 
102,  39  L.  Ed.  85,  15  Sup.  Ct.  Rep. 


34  (which  reversed  39  Fed.  77), 
and  Postal  Tel.  Cable  Co.  v. 
Alabama,  155  U.  S.  482,  15  Sup. 
Ct.  Rep.  192,  sub  nom.  Postal  Tel. 
Cable  Co.  v.  United  States,  39 
L.  Ed.  231;  Pittsburgh,  C.  &  St. 
L.  R.  Co.  V.  Ramsey,  89  U.  S.  (22 
Wall.)  322,  2  L.  Ed.  823;  Robert- 
son V.  Cease,  97  U.  S.  466,  24  L.  Ed. 
1057;  Mansfield,  C.  &  L.  M.  R.  Co. 
V.  Swan,  111  U.  S.  379,  28  L.  Ed. 
462,  4  Sup.  Ct.  Rep.  510;  Cameron 
V.  Hodges,  127  U.  S.  322,  32  L.  Ed. 
132,  8  Sup.  Ct.  Rep.  1154;  Stevens 
V.  Nichols,  130  U.  S.  230,  32  L.  Ed. 
914,  9  Sup.  Ct.  Rep.  518;  Mitchell 
V.  Smale,  140  U.  S.  406,  35  L.  Ed. 
442,  11  Sup.  Ct.  Rep.  819,  840. 

Diversity  of  citizenship  (see, 
ante,  §  448)  may  be  shown  in  the 
petition  for  removal,  only.  — 
Ysleta,  City  of,  v.  Canda,  67  Fed. 
6;  Stevens  v.  Nichols,  130  U.  S. 
230,  231,  32  L.  Ed.  914,  9  Sup.  Ct. 
Rep.   518. 


598 


ch.  XVIII.] 


AVERMENT  AS  TO  ALIENAGE. 


§462 


volved,^  and  that  the  diversity  of  citizenship  existed  at 
the  time  when  the  complaint  was  filed  as  well  as  at  the 
time  when  the  petition  for  removal  is  presented,^  because 
to  be  removable  on  ground  of  diversity  of  citizenship  the 
record  must  show  that  at  the  time  of  the  application  for 
removal  such  diversity  of  citizenship  exists.^ 


§462. 


(3.)  Averments  as  to  alienage.^    In  a 


case  in  which  the  removal  of  a  suit  from  a  state  to  the 
federal  district  court  of  the  state  is  sought  on  the  ground 
of  alienage  of  the  party,  the  petition  for  removal  must 
affirmatively  show  such  alienage, — except  in  those  cases 
in  which  it  already  plainly  appears  in  the  record  in  the 


4  Huntington  v.  Pinney,  126  Fed. 
327;  Jones  v.  Adams  Express  Co., 
129  Fed.  618;  Thompson  v.  Stal- 
mann,  131  Fed.  809;  Grace  v. 
American  Cent.  Ins.  Co.,  109  U.  S. 
278,  27  L.  Ed.  392,  3  Sup.  Ct.  Rep. 
207,  reversing  16  Blatchf.  433,  Fed. 
Cas.  No.  5684;  Cameron  v.  Hodges, 
127  U.  S.  322,  32  L.  Ed.  1328,  Sup. 
Ct.  Rep.  1154;  Neel  v.  Pennsyl- 
vania Co.,  157  U.  S.  153,  39  L.  Ed. 
654,  15  Sup.  Ct.  Rep.  589. 

Averment  of  "residence"  in  a 
certain  state  is  not  equivalent  to 
an  averment  of  "citizenship"  in 
such  state,  and  is  insufficient  for 
removal.  —  Neel  v.  Pennsylvania 
Co.,  157  U.  S.  153,  39  L.  Ed.  654, 
15  Sup.  Ct.  Rep.  589. 

See,  also,  cases  cited  in  annota- 
tion 5  Fed.  Stats.  Ann.,  2d  ed.,  p. 
584,  cols.  1  and  2;  also  pp.  289-301. 

Diversity  of  citizenship  appear- 
ing upon  the  face  of  the  complaint 
filed  in  the  state  court,  or  from 
any  part  of  the  record  in  the  case 
at  the  time  the  petition  for  re- 
moval is  filed,  the  citizenship  of 
the  parties  is  not  required  to  be 
stated  in  such  petition. — Wells  v. 


Russellville   Anthracite   Min.   Co., 
206  Fed.  528. 

Several  parties,  both  plaintiffs 
and  defendants,  particular  state  of 
which  each  is  a  citizen  must  be 
set  out  in  petition  for  removal. — 
Jones  V,  Adams  Express  Co.,  129 
Fed.  618. 

5  Gibson  v.  Bruce,  108  U.  S.  561, 
27  L.  Ed.  825,  2  Sup.  Ct.  Rep.  873, 
affirming  9  Fed.  540;  Houston  & 
F.  C.  R.  Co.  V.  Shirley,  111  U.  S. 
358,  28  L.  Ed.  455,  4  Sup.  Ct.  Rep. 
472,  affirming  4  Woods  411,  13  Fed. 
705;  Mansfield,  C.  &  L.  M.  R.  Co. 
V.  Swan,  111  U.  S.  379,  28  L.  Ed. 
462,  4  Sup.  Ct.  Rep.  510;  Stevens 
V.  Nichols,  130  U.  S.  230,  32  L.  Ed. 
914,  9  Sup.  Ct.  Rep.  518. 

6  Stevens  v.  Nichols,  130  U.  S. 
230,  32  L.  Ed.  914,  9  Sup.  Ct.  Rep. 
518;  Crehore  v.  Ohio  &  M.  R.  Co., 
131  U.  S.  240,  33  L.  Ed.  144,  9  Sup. 
Ct.  Rep.  692;  Kellam  v.  Keith,  144 
U.  S.  568,  30  L.  Ed.  544.  12  Suj).  Ct. 
Rep.  922. 

1  Form  of  petition  to  remove 
cause  on  account  of  alienage,  see 
Jury's  Adjudicated  Forms  of  Plead- 
ing and  Practice,  vol.  2,  p.  1818, 
Form  No.  1103. 


599 


§  463  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

case, — and  not  leave  the  fact  to  be  argumentatively  in- 
ferred from  other  circumstances  stated, — e.  g.  that  he  is 
consul  for  a  foreign  government;-  and  this  allegation 
must  be  made  positively  and  not  on  information  and  be- 
lief.^ But  in  the  case  of  a  foreign  corporation,  where  the 
complaint  filed  in  the  state  court  shows  on  its  face  that 
the  corporation  is  a  foreign  corporation,  the  alienage  of 
such  corporation  at  the  time  the  suit  was  brought  need 
not  be  alleged,^  it  being  sufficient  if  the  record  shows 
affirmatively  the  alienage.^ 

^  463, (4.)  Averments  as  to  separable  con- 
troversy. On  an  application  for  the  removal  of  a  suit  from 
a  state  court  to  the  federal  district  court  for  the  district, 
it  is  usual,^  and  surely  is  the  better  practice,  for  the  peti- 
tion for  removal,  ''of  itself  distinctly  to  show  and  point 
out  the  separable  controversy,  name  the  parties  to  it,  and 
state  all  the  grounds  upon  which  the  petition  relies,  and 
not  leave  the  court  to  grope  through  the  record"  in  an 
effort  to  ascertain  whether  a  separable  controversy  in 
fact  exists  and  its  exact  nature;-  although  it  has  been 
said  to  be  sufficient  simply  to  allege  the  existence  of  a 
separable  controversy,  without  pointing  out  such  contro- 
versy or  the  parties  to  it,  where  it  appears  from  the  rec- 
ord that  such  a  controversy  in  fact  exists,^  because  the 
existence  of  a  separable  controversy  is  to  be  determined 
from  the  condition  of  the  record  in  the  state  court  at  the 

2Bors  V.  Preston,  111  U.  S.  252,  5  Id.;   Pittsburgh,  C.  &  St.  L.  R. 

28  L.  Ed.  419,  4  Sup.  Ct.  Rep.  407.  Co.  v.  Ramsey,  89  U.  S.  (22  Wall.) 

3  Wolff  V.  Archibald,  14  Fed.  369.  322,  22   L.   Ed.  823;    Robertson  v. 

4  National  Steamship  Co.  v.  Tug-  Cease,  97  U.  S.  646,  648,  24  L.  Ed. 
man,  106  U.  S.  118,  27  L.  Ed.  87,  1057,  1058. 

1   Sup.   Ct.   Rep.   58.   reversing  76  i  Harding   v.    Standard   Oil    Co.. 

N.  Y.  207,  affirming  13  Hun  332.  170  Fed.  651. 

As  to  necessity  of  showing  facts  2  Gates  Iron  Works  v.  Pepper,  98 

as  alleged  existed  at  the  time  suit  Fed.  449. 

was  brought,  see,  ante,  §  461,  foot-  3  Harding   v.    Standard   Oil   Co., 

note  5,  and  text  going  therewith.  170  Fed.  651. 

GOO 


ch.  XVIII.] 


SEPARABLE   CONTROVERSY, 


§463 


time  of  filing  the  petition  for  removal,^  not  upon  the  alle- 
gations in  the  affidavit  or  in  the  petition  for  removal,^  or 
the  subsequent  proceedings  in  the  federal  district  court,^ — 
unless  the  petition  both  alleges  and  proves  that  the  de- 
fendants were  wrongfully  made  joint  defendants  for  the 
express  purpose  of  preventing  a  removal  to  the  federal 
district  court. "^  For  the  purpose  of  determining  whether 
a  separable  controversy  in  fact  exists,  the  pleadings  of 
the  plaintiff  in  the  state  court  must  be  taken  as  true.^ 

In  actions  ex  delicto  on  an  application  for  removal  on 
account  of  separable  controversy,  the  separable  contro- 


4  Chesapeake  &  O.  R.  Co.  v, 
Dixon,  179  U.  S.  131,  45  L.  Ed.  121, 
21  Sup.  Ct.  Rep.  67.  See  Texar- 
kana  Tel.  Co.  v.  Bridges,  75  Ark. 
119,  86  S.  W.  841;  American  Bridge 
Co.  V.  Hunt,  64  C.  C.  A.  550,  130 
Fed.  304. 

5  Louisville  &  N.  R.  Co.  v.  Wan- 
gelin,  132  U.  S.  599,  33  L.  Ed.  474, 
10  Sup.  Ct.  Rep.  203.  See  Security 
Co.  V.  Pratt,  65  Conn.  168,  32  Atl. 
306;  Arrowsmith  v.  Nashville  &  D. 
R.  Co.,  57  Fed.  169;  Warax  v.  Cin- 
cinnati, N.  O.  &  T.  P.  R.  Co.,  72 
Fed.  640;  Swann  v.  Mutual  Re- 
serve Fund  Life  Assoc,  116  Fed. 
234;  Loden  v.  Mack,  65  C.  C.  A, 
363,  130  Fed.  879;  Miller  v.  Clif- 
ford, 67  C.  C.  A.  56,  133  Fed.  884, 
5  L.  R.  A.  (N.  S.)  58;  Kansas  City, 
Ft.  S.  &  M.  R.  Co.  V.  Daughtry,  138 
U.  S.  303,  34  L.  Ed.  964,  11  Sup.  Ct. 
Rep.  306;  Wilson  v.  Oswego  Town- 
ship, 151  U.  S.  56,  38  L.  Ed.  70,  14 
Sup.  Ct.  Rep.  259. 

6  Wilson  v.  Oswego  Township, 
151  U.  S.  56,  38  L.  Ed.  70,  14  Sup. 
Ct.  Rep.  259. 

^  Louisville  &  N.  R.  Co.  v.  Wan- 
gelin,  132  U.  S.  599,  33  L.  Ed.  474, 
10  Sup.  Ct.  Rep.  203. 


Fraudulent  joinder  does  not  ex- 
ist where  complaint  shows  that 
servant  of  nonresident  corporation 
jointly  liable  with  the  company. — 
Enos  V.  Kentucky  Distilleries  & 
Warehouse  Co.,  Ill  C.  C.  A.  74, 
189  Fed.  346.  See  Cincinnati  N.  O. 
&  T.  P.  R.  Co.  V.  Cook,  113  Ky. 
164,  67  S.  W.  383;  Rutherford  v. 
Illinois  Cent.  R.  Co.,  120  Ky.  22, 
85  S.  W.  199  (denial  in  petition  for 
removal  of  servants  negligence 
does  not  render  joinder  fraudulent, 
as  it  does  not  state  a  jurisdictional 
fact) ;  Schumpert  v.  Southern  R. 
Co.,  65  S.  C.  339,  95  Am.  St.  Rep. 
802,  43  S.  E.  813  (negligence  with- 
in scope  of  servant's  employ- 
ment) ;  Cincinnati,  N.  O.  &  T.  P. 
R.  Co.  V.  Boon,  200  U.  S.  223,  5 
L.  Ed.  450,  4  Ann.  Cas,  1152,  26 
Sup.  Ct.  Rep.  166  (diversity  of  cit- 
izenship as  to  other  defendants 
than  the  servant  joined  with  for- 
eign corporation  necessary  to  re- 
moval). 

X  East  Tennessee,  V.  &  G.  R.  Co. 
v.  Grayson,  119  U.  S.  240,  30  L.  Ed. 
382,  7  Sup.  Ct.  Rep.  190.  See  Na- 
tional Docks  &  N.  J.  Junction  Con- 
necting R.  Co.  v.  Pennsylvania  R. 
Co.,  52  N.  J.  Eq.  65,  28  Atl.  71. 


GOl 


§463 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


versy  must  appear  in  the  plaintiff's  pleadings  in  the  state 
court,  and  can  not  be  made  to  appear  from  the  affidavit 
or  the  petition^  filed  for  removal. ^^  The  well-settled  rule 
is  that  in  actions  of  tort,  when  the  action  might  have  been 
brought  against  many  persons  or  against  any  one  of 
them,  and  it  is  brought  in  a  state  court  against  them  all 
jointly,  this  does  not  constitute  a  separate  controversy 
which  will  authorize  the  removal  of  the  suit  by  some  of 
the  defendants  to  the  federal  district  court,  even  in  those 
cases  in  which  the  defendants  file  separate  answers  and 
set  up  different  defenses,  and  those  asserting  the  right  to 
a  removal  allege  that  they  are  not  jointly  liable  with  the 
other  defendants,  and  that  their  own  controversy  with  the 
plaintiff  is  a  separate  one;  because  a  defendant  has  no 
right  to  say  that  a  controversy  is  a  separate  one  which 
the  plaintiff  seeks  to  make  joint,  can  not  defeat  the  plaiu- 


9  See  authorities,  footnote  5,  this 
section. 

10  Chesapeake  &  O.  R.  Co.  v. 
Dixon,  179  U.  S.  131,  45  L.  Ed.  121, 
21  Sup.  Ct.  Rep.  67,  affirming  104 
Ky.  608,  47  S.  W.  615.  See  Win- 
ston's Admr.  v.  Illinois  Cent.  R. 
Co.,  Ill  Ky.  954,  958,  55  L.  R.  A. 
603,  604,  65  S.  W.  13;  Lanning  v. 
Chicago  Great  Western  R.  Co.,  196 
Mo.  658,  94  S.  W.  491;  Able  v. 
Southern  R.  Co.,  73  S.  C.  178,  52 
S.  E.  962;  Riser  v.  Southern  R. 
Co.,  116  Fed.  215;  Swann  v.  Mutual 
Reserve  Fund  Life  Assoc,  116  Fed. 
233;  Person  v.  Illinois  Cent.  R.  Co., 
118  Fed.  347;  Union  Terminal  R. 
Co.  V.  Chicago,  B.  &  Q.  R.  Co.,  119 
Fed.  211;  Carothers  v.  McKenley 
Min.  &  Smelt.  Co.,  122  Fed.  307; 
Boatman's  Bank  v.  Fritzien,  68 
C.  C.  A.  300,  135  Fed.  662;  Daven- 
port V.  Southern  R.  Co.,  65  C.  C,  A. 
447,  135  Fed.  963;  Cella  v.  Brown, 
136    Fed.    443;    Yeates    v.    Illinois 


Cent.  R.  Co.,  137  Fed.  945;  Lucas 
V.  Milliken,  139  Fed.  825;  Hefflin- 
ger  V.  Choctaw,  O,  &  G.  R.  Co.,  140 
Fed.  77;  Holmes  v.  United  States 
Fire  Ins.  Co.,  142  Fed.  865;  Thomas 
V.  Great  Northern  R.  Co.,  77 
C.  C.  A.  256,  147  Fed.  84;  Gable- 
man  V.  Peoria,  D.  &  E.  R.  Co.,  179 
U.  S.  337,  45  L.  Ed.  222,  21  Sup. 
Ct.  Rep.  171;  Alabama  Great  So. 
R.  Co.  V.  Thompson,  200  U.  S.  216, 
50  L.  Ed.  447,  26  Sup.  Ct.  Rep.  161. 

As  to  joinder  of  statutory  action 
against  master  with  common-law 
action  against  servant,  for  latter's 
negligence,  as  creating  separable 
controversy,  see  note  12  L.  R.  A. 
(N.  S.)  676. 

As  to  joint  liability  for  tort  of 
master  and  servant,  see  note  12 
L.  R.  A.  (N.  S.)  671. 

As  to  whether  joint  action 
against  master  and  servant  for 
negligence  of  sei^vant  '•ontains  sep- 
arable controversy,  see  note  5 
L.  R.  A.  (N.  S.)  96. 


602 


(ll.  XVIII.]  PREJUDICE  AND  LOCAL  INFLUENCE.  §464 

tiff's  right  to  prosecute  his  suit  to  a  final  decision  in  his 
fn\Ti  way.  The  cause  of  action  is  the  subject-matter  in 
controversy,  and  that  is,  for  all  the  purposes  of  the  suit, 
wliat  the  plaintiff  declares  it  to  be  in  his  pleadings.  Hence 
the  rule  that  the  plaintiff's  pleadings  must  show  the  con- 
troversy separable  to  entitle  a  defendant  to  removal.^ ^ 

§464. (5.)  Averments  as  to  prejudice  and 

LOCAL  INFLUENCE.  Wc  havc  already  seen  that  in  those 
sases  where  a  defendant,  a  citizen  of  another  state,  can 
not  have  a  fair  and  impartial  trial  in  the  court  in  which 
the  suit  is  commenced,  he  is  entitled  to  have  the  cause 
removed  to  the  federal  district  court  upon  making  the 
jurisdictional  facts  to  clearly  appear  ;^  but  it  must  be 
averred  in  the  petition  for  removal  and  shown  by  the 
affidavits  or  other  evidence  that  the  prejudice  or  detri- 
mental local  influence  exists  as  between  the  plaintiff  and 
the  defendant  seeking  the  removal,  because  such  preju- 
dice or  influence  as  between  defendants  is  not  a  ground 
for  removal.-  The  petition  and  affidavits  must  also  show 
that  the  defendant  seeking  the  removal  is  a  necessary  or 
proper  defendant  and  not  merely  a  formal  defendant, 
because  such  a  defendant  is  not  entitled  to  a  removal  of 
the  cause  on  this  ground.^  The  petition  and  affidavits 
must  state  all  the  facts  upon  which  the  removal  is  sought.* 
It  is  not  enough  to  show  a  separable  controversy,®  diver- 

11  Powers   V.   Chesapeake    &   O.  Rep.  726,  727;    Connell  v.  Smiley, 

R.  Co.,  169  U.  S.  92,  42  L.  Ed.  673,  156  U.  S.  335,  340,  39   L.   Ed.  443, 

18  Sup.  Ct.  Rep.  264.     See  Pirie  v.  444,  15  Sup.  Ct.  Rep.  353,  354. 

Tvedt,  115  U.  S.  41,  43,  29  L.  Ed.  i  gee.  ante,  §  450. 
:^31,    332,    5    Sup.    Ct.    Rep.    1034, 
1035;  Sloane  v.  Anderson,  117  U.  S. 
275,  29  L.  Ed.  899,  6  Sup.  Ct.  Rep. 
730;  Little  v.  Giles,  118  U.  S.  596, 

600,  601,  30  L.  Ed.  269,  270,  7  Sup.  '  ^^'^^''^  <^o"«Se  of  Western  Re- 

Ct.  Rep.  32,  35;  Louisville  &  N.  R.  ^^'"^^  University  v.  Toledo,  W.  & 

Co.  V.  Wangelin,  132  U.  S.  599,  33  W.  R.  Co.,  47  Fed.  836. 

L.  Ed.  474,  10  Sup.  Ct.  Rep.  203;  *  Hall    v.    Chattanooga    Agricul- 

Torrance  v.  Shedd.  144  U.  S.  527,  tural  Works,  48  Fed.  599. 

630,  36  L.  Ed.  528,  531,  12  Sup.  Ct.  5  Jefferson  v.  Driver,  117  U.   S. 

603 


2  Hanrick  v.  Hanrick,  153  U.  S. 
192,  38  L.  Ed.  685,  14  Sup.  Ct.  Rep. 
635. 


§  465  CODE  PLEADING  AND  PRACTICE.  [Pt.  1, 

sity  of  citizenship  must  also  be  shown^  by  the  petition  and 
supporting  affidavits.  The  petition  must  distinctly  and 
directly  aver  prejudice  against  the  party  seeking  the  re- 
moval, or  local  influence  exerted  by  the  adverse  party 
against  the  moving  party,  and  the  affidavits  supporting 
the  petition  must  state  the  facts  showing  such  prejudice 
or  local  influence,  not  merely  express  the  conviction  or 
opinion  of  the  affiants  as  to  the  existence  of  the  same  ;^  an 
allegation  that  affiant  has  reason  to  believe  and  does  be- 
lieve such  prejudice  or  local  influence  does  exist  and  for 
that  reason  the  moving  party  can  not  have  a  fair  and 
impartial  trial  in  the  state  court,  is  insufficient.^ 

§  465. (6.)  Averments  as  to  denial  of  cmii 

RIGHTS.  The  petition  and  supporting  affidavits  seeking 
the  removal  of  a  cause  from  a  state  court  to  the  federal 
district  court  on  the  ground  of  a  denial  to  the  moving- 
party  of  his  civil  rights  in  the  state  courts,  must  state 
such  facts  and  circumstances  as  clearly  show  the  exist- 
ence of  the  jurisdictional  facts.  Thus,  it  has  been  held 
that  the  petition  and  supporting  affidavits  of  a  negro  on 
trial  on  a  criminal  charge  in  a  state  court  which  merely 
show  that  the  grand  and  petit  jurors  were  exclusively 
white  persons,  that  negroes  had  never  been  permitted  to 
serve  as  jurors  in  the  court  in  the  county  in  which  the 
trial  was  to  be  had  in  any  case  in  which  a  negro  was  in- 
terested, are  insufficient  to  show  the  existence  of  the  juris- 
dictional fact  of  a  denial  of,  or  an  inability  to  enforce, 
ci\dl  rights  in  the  state  tribunal.^  And  neither  is  it  a 
sufficient  showing  of  the  denial  of  civil  rights  where  the 
petition  for  removal  and  the  record  in  the  case  shows  that 

272,  29  L.  Ed.  897,  6  Sup.  Ct.  Rep.  7  Goldsworthy  v.  Chicago,  M.  & 

729;  Cambria  Iron  Co.  v.  Ashburn,  St.  P.  R.  Co.,  38  Fed.  769. 

118  U.  S.  54,  30  L.  Ed.  60,  6  Sup.  8  Collins    v..  Campbell,    62    Fed. 

Ct.  Rep.  929.  850. 

6  See    annotations    and    cases    5  i  Virginia  v.  Rives,  100  U.  S.  313, 

Fed.    Stats.  Ann.,   2d  ed.,   pp.   166  sub  nom.  Virginia,  In  re,  25  L.  Ed. 

et  seq.  667. 

604 


ell.  XVIII.]  DENIAL  OF  CIVIL  RIGHTS.  §  465 

the  petitioner  has  been  tried  three  times  on  a  criminal 
charge,  convicted  in  the  trial  court  each  time,  and  the 
judgment  in  each  instance  reversed  by  the  court  of  final 
resort  in  the  state;  that  on  the  second  and  third  trials 
the  petitioner  had  been  discriminated  against  by  the  per- 
sons charged  under  the  state  laws  with  the  duty  of  draw- 
ing the  panel  and  summoning  the  veniremen  from  whom 
the  trial  jury  was  to  be  selected,  in  such  a  manner  and 
with  the  result  that  all  the  jurors  in  such  second  and  third 
trials  were  of  the  political  party  opposed  to  the  one  to 
which  the  petitioner  belonged;  that  an  objection  to  the 
panel  and  jury  on  that  ground,  and  on  motion  for  a  new 
trial  because  thereof,  the  trial  court  refused  to  consider 
the  evidence  offered  to  show  such  discrimination,  but  de- 
clared and  ruled  that  the  petitioner  had  no  right  to  object 
to  the  panel  and  the  jury,  because  the  jurors  chosen  pos- 
sessed the  statutory  qualification  of  jurors  and  were  com- 
petent to  hear  and  determine  the  cause,  according  to  the 
construction  of  the  court  of  highest  resort  of  the  state, 
which  construction  and  decision  were  final  and  not  subject 
to  review.-  The  petition  for  removal  and  the  record  must 
further  show  that  such  discrimination  complained  of  was 
authorized  by  the  state  constitution  or  laws,  as  inter- 
preted by  the  highest  court  of  the  state,  before  a  showing 
is  made  sufficient  to  warrant  removal  of  cause  on  ground 
of  denial  of  civil  rights.^  In  other  words,  to  be  sufficient, 
the  petition  and  the  record  must  show  that  the  denial  of 
civil  rights  complained  of  is  due  to  the  fact  that  the  state 
constitution  or  laws  as  interpreted  by  the  court  of  last 
resort  of  the  state,  is  repugnant  to  the  fourteenth  amend- 
ment to  the  constitution  of  the  United  States,^  and  that 

2  This  was  held  a  sufficient  4  Dixon  v.  State,  74  Miss.  271, 
showing  in  Kentucky  v.  Powers,  20  So.  839;  New  York  v.  Bennett, 
139  Fed.  452,  reversed  as  noted  in  113  Fed.  515;  Scott  v.  Kinney  & 
next  footnote.  Co.,  R.  D.,  137  Fed.  1009. 

3  Kentucky  v.  Powers,  201  U.  S.  See,  also,  ante,  §  451,  footnotes  4 
1,  50  L.  Ed,  633,  26  Sup.  Ct.  Rep.  et  seq.,  and  text. 

387,  reversing  139  Fed.  452. 

605 


M66 


CODE   PLEADING   AND   PRACTICE. 


Pt.  [, 


the  petitioner  has  no  adequate  remedy  in  the  courts  of  the 
state  where  the  suit  is  pending.^ 

§466. (7.)  Averments  as  to  federal  ques- 
tion.^ A  petition  on  application  for  removal  of  a  suit  from 
a  state  court  to  the  federal  district  court  because  a  federal 
question  is  involved  must  aver  that  it  appears  from  the 
pleadings  filed  by  the  plaintiff  in  the  suit  that  the  cause 
of  action  is  one  arising  under  the  constitution  and  laws 
of  the  United  States,^  or  it  will  be  insufficient  to  warrant 
a  removal  f  no  statement  in  the  petition  for  removal,  or 
in  any  demurrer  filed  in  the  action,  will  supply  this  want 
of  showing  of  a  federal  question  in  the  original  pleading  ;* 
although  it  has  been  said  that  it  is  sufficient  if  the  federal 


5  New  Jersey  v.  Corrigan,  139 
Fed.  758.  See  Chappell  v.  Real- 
Estate  Pooling  Co.,  89  Md.  258,  42 
Atl.  936. 

1  Form  of  petition  for  removal 
where  a  federal  question  involved. 
See  Jury's  Adjudicated  Forms  of 
Pleading  and  Practice,  vol.  2,  p. 
1818,  Form  No.  1104. 

-'  Showing  must  be  by  plaintiff's 
pleading  in  the  suit,  and  not  other- 
wise, that  cause  arose  under  con- 
stitution and  laws  (as  to  federal 
question,  see,  ante,  §  452)  of  the 
United  States. — Tennessee  v.  Union 
&  Planters'  Bank,  152  U.  S.  454,  38 
L.  Ed.  511,  14  Sup.  Ct.  Rep.  654; 
Postal  Tel.  Cable  Co.  v.  Alabama, 
155  U.  S.  487,  15  Sup.  Ct.  Rep.  192, 
sub  nom.  Postal  Tel.  Cable  Co.  v. 
United  States,  39  L.  Ed.  231;  Ore- 
gon Short-Line  &  U.  N.  R.  Co.  v. 
Skottowe,  163  U.  S.  495,  40  L.  Ed. 
1048,  16  Sup.  Ct.  Rep.  869. 

See,  also,  authorities  cited  in 
next  footnote. 

3  Central  R.  Co.  v.  Mills,  113 
U.  S.  249,  28  L.  Ed.  949,  5  Sup.  Ct. 
Rep.  456;  Chappell  v.  Waterworth, 
155  U.  S.  102,  29  L,  Ed.  85,  15  Sup. 


Ct.  Rep.  34;  Postal  Tel.  Cable  Co. 
V.  Alabama,  155  U.  S.  482,  15  Sup. 
Ct.  Rep.  192,  sub  nom.  Postal  Tel. 
Cable  Co.  v.  United  States,  39 
L.  Ed.  231;  United  States  v.  Amer- 
ican Bell  Tel.  Co.,  159  U.  S.  548, 
40  L.  Ed.  265,  16  Sup.  Ct.  Rep.  69; 
Walker  v.  Collins,  167  U.  S.  57,  42 
L.  Ed.  76,  17  Sup.  Ct.  Rep.  738; 
Galveston,  H.  &  S.  A.  R.  Co.  v. 
Texas,  170  U.  S.  226,  42  L.  Ed. 
1017,  18  Sup.  Ct.  Rep.  603;  Gable- 
man  v.  Peoria,  D.  &  E.  R.  Co.,  179 
U.  S.  355,  45  L.  Ed.  220,  21  Sup. 
Ct.  Rep.  171;  Arkansas  v.  Kansas 
&  T.  Coal  Co.,  183  U.  S.  185,  46 
L.  Ed.  144,  22  Sup.  Ct.  Rep.  47; 
Minnesota  v.  Northern  Securities 
Co.,  194  U.  S.  48,  48  L.  Ed.  870,  24 
Sup.  Ct.  Rep.  598. 

Federal  question  first  set  up  in 
reply  or  defense,  cause  not  remov- 
able.— Houston  &  T.  C.  R.  Co.  v. 
Texas,  177  U.  S.  66,  44  L.  Ed.  673, 
20  Sup.  Ct.  Rep.  545.  See  Central 
R.  Co.  v.  Mills,  113  U.  S.  249,  28 
L.  Ed.  949,  5  Sup.  Ct.  Rep.  456. 

i  Tennessee  v.  Union  &  Plant- 
ers' Bank,  152  U.  S.  454,  38  L.  Ed, 
511,  14  Sup.  Ct.  Rep.  654. 


GOG 


ch.  XVIII.]  VERIFICATION — AMENDMENT.  §§467,468 

question  appears  in  the  record,  or  in  the  petition  for 
removal,  whether  disclosed  in  the  original  pleading  in  the 
case  or  not,''  and  where  the  federal  question  is  disclosed 
in  the  original  pleading  it  need  not  be  restated  in  the 
petition  for  removal.^ 

§  467. Verification  of  petition  for  removal. 

The  federal  Judicial  Code^  requires  that  a  petition. for 
the  removal  of  a  suit  from  a  state  court  to  the  federal 
district  court  of  the  district,  shall  be  duly  verified ;  such 
verification  was  not  formerly  required;^  and  as  the  Ju- 
dicial Code  does  not  specify  by  whom  the  verification 
shall  be  made,  it  has  been  held  that  such  verification  may 
be  made  by  the  attorney  for  the  party  seeking  to  remove 
the  cause.^ 

<^  468. Amendment  of  petition  for  removal. 

A  petition  for  the  removal  of  a  suit  from  a  state  court 
to  a  federal  district  court  for  any  of  the  causes  or  grounds 
for  or  on  which  a  suit  is  removable,  may  be  amended^  or 
a  new  petition  filed^  in  the  state  court  at  any  time  before 

5  Metcalf  V.  Watertown,  City  of,  verification.  —  Groton  Bridge  & 
128  U.  S.  586,  32  L.  Ed.  543,  9  Sup.  Mfg.  Co.  v.  American  Bridge  Co., 
Ct.  Rep.  173.  137  Fed.  284,  290. 

6  Little  York  Gold  Washing  &  3  Harley  v.  Homes  Ins.  Co.,  125 
Water  Co.  v.  Keyes,  94  U.  S.  199,  Fed.  792. 

24  L.  Ed.  656.  i  Mitchell    v.    Small,    140    U.    S. 

1  §  29,  5  Fed.  Stats.  Ann.,  2d  ed.,  406,  35  L.  Ed.  442,  11  Sup.  Ct.  Rep. 
p.  235.  819,  840. 

2  Groton  Bridge  &  Mfg.  Co.  v.  See,  also,  cases  in  next  footnote. 
American  Bridge  Co.,  137  Fed.  284,  2  Security  Co.  v.  Pratt,  65  Conn. 
290;  Donovan  v.  Wells,  94  C.  C.  A.  161,  32  Atl.  396;  Hammond  v.  Bu- 
609,  169  Fed.  363,  22  L.  R.  A.  chanan,  68  Ga.  728;  Cuyler  v. 
(N.  S.)  1250;  Berry  v.  Mobile  &  Smith,  78  Ga.  662,  3  S.  E.  408; 
O.  R.  Co.,  228  Fed.  395;  Removal  Hardwick  v.  Kean,  95  Ky.  563,  26 
Cases,  100  U.  S.  457,  sub  nom.  S.  W.  589;  Herndon  v.  Aetna  Ins. 
Meyer  V.  Delaware  Railroad  Const.  Co.,  108  N.  C.  648,  13  S.  E.  188; 
Co.,  25  L.  Ed.  593.  St.  Louis,  I.  M.  &   S.  R.  Co.  v. 

See  Hughes,  Federal  Practice  West  (Tex.  Civ.  App.),  159  S.  W. 
323.  142;    Houser  v.  Clayton,  3  Woods 

Verification  not  signed  held  not  273,  Fed.  Cas.  No.  6739;  Wells  v. 
to  vitiate  the  petition  for  removal,  Russellville  Anthracite  Coal  Co., 
because  the  statute  did  not  require      206  Fed.  528. 

607 


§468 


CODE  PLEADING  AND   PRACTICE. 


[Pt.  I, 


the  expiration  of  tlie  time  allowed  for  removal,  and  in 
some  cases  after  tliat  time,^  in  the  discretion  of  the  court  ;^ 
and  where  the  alternate  jurisdictional  facts  are  stated  in 
the  petition  for  removal  filed  in  the  state  court,  the 
petition  may  be  amended  in  the  federal  district  court,  in 
order  that  it  may  more  fully  and  accurately  state  the 
facts  upon  Avhich  the  removal  is  sought.^  But  an  amend- 
ment may  be  allowed  in  the  federal  district  court  in  those 
cases,  only,  in  which  the  petition  presented  to  the  state 
court  shoAvs  on  its  face  sufficient  grounds  for  removal;" 
if  fatally  defective  in  failing  to  state  a  ground  of  removal, 
or  in  failing  to  state  the  ground  sufficiently  to  show  on  its 
face  a  right  of  the  applicant  to  a  removal,  it  can  not  be 
amended  in  the  federal  courts  And  where  the  petition 
for  removal  as  presented  to  the  state  court  does  not  con- 
tain the  necessary  jurisdictional  averments,  an  amend- 


I 


3  Tremper  v.  Schwabacher,  84 
Fed.  415;  Roberts  v.  Pacific  & 
A.  R.  &  Nav.  Co.,  104  Fed.  577, 
579. 

By  averment  as  to  citizenship  of 
petition  being  the  same  at  the 
commencement  of  the  action  (see, 
ante,  §  461)  and  at  the  time  the 
petition  for  removal  was  filed. — 
Roberts  v.  Pe«;ific  &  A.  R.  &  Nav. 
Co.,  104  Fed.  577,   579. 

4  Stevens  v.  Nichols,  157  U.  S. 
370,  39  L.  Ed.  737,  15  Sup.  Ct.  Rep. 
640. 

r;  Roberts  v.  Pacific  &  A.  R.  & 
Nav.  Co.,  104  Fed.  577,  579;  De  la 
Montanya  v.  De  la  Montanya,  158 
Fed.  117;  Ayers  v.  Watson,  113 
U.  S.  594,  28  L.  Ed.  1093,  5  Sup.  Ct. 
Rep.  641;  Carson  v.  Dunham,  121 
U.  S.  421,  30  L.  Ed.  992,  7  Sup.  Ct. 
Rep.  1030. 

Allegation  as  to  citizenship  of 
corporation  is  amendable. — Wells 
V.  Russellville  Anthracite  Coal  Co., 
206  Fed.  528. 


— Erroneous  citizenship  of  plain- 
tiff stated  through  misinformation, 
federal  court  may  permit  amend- 
ment.— Wilbur  V.  Red  Jacket  Con- 
sol.  Coal  &  Coke  Co.,  153  Fed.  662. 

Diverse  "residence"  instead  of 
diverse  "citizenship"  (s  e  e,  ante, 
§  461)  being  by  mistake  of  attor- 
n  e  y  alleged  in  petition  for  re- 
moval, amendment  to  shov/  diverse 
citizenship  will  be  allowed,  where 
it  will  not  delay  the  trial. — Hin- 
man  v.  Barrett,  244  Fed.  621. 

6  Gerling  v.  Baltimore  &  O.  R. 
Co.,  151  U.  S.  673,  38  L.  Ed.  311, 
14  Sup.  Ct.  Rep.  533. 

Amendment  to  show  different 
state  of  facts  not  permissible. — 
Healy  v.  McCormick,  157  Fed.  318. 

7  Sloane  v.  Butte  Electric  R.  Co., 
150  Fed.  801;  Wallenburg  v.  Mis- 
souri Pac.  R.  Co.,  159  Fed.  217; 
Santa  Clara  County  v.  Goldy  Mach. 
Co.,  159  Fed.  750. 


COS 


Ch.  XVin.]  BOND  ON  REMOVAL REQUISITES. 


§469 


ment  subsequently  allowed  in  the  federal  court  will  not 
cure  the  defect,  or  deprive  the  state  court  of  jurisdiction 
of  the  cause. ^ 


§469. 


3.  Bond    for    removal^  —  Requisites    and 


sx'FFiciExcY  OF.  Tlic  federal  Judicial  Code-  provides  that 
the  applicant  for  the  removal  of  a  suit  from  a  state  court 
to  the  federal  district  court,  **  shall  make  and  file"  with  his 
petition  for  removal  **a  bond,  with  good  and  sufficient 
surety";  and  this  bond  must  be  duly  executed  by  the 
party  seeking  a  removal,^  before  the  state  court  is  ousted 
of  jurisdiction  in  the  cause,  or  the  federal  district  court 
can  take  jurisdiction.*  A  petition  for  removal  by  one 
party,  and  a  bond  on  removal  by  another  party,  does  not 


8  Springs  v.  Southern  R.  Co.,  130 
N.  C.  186,  41  S.  E.  100. 

1  Form  of  bond  on  removal  of  a 
suit  from  a  state  court  to  the  fed- 
pral  district  court  is  found  in  Jury's 
/Adjudicated  Forms  of  Pleading  and 
Practice,  vol.  2,  p.  1819,  form  No. 
1106. 

This  form  of  Mr.  Jury's  was  pre- 
l)ared  under  the  former  Removal 
Act,  and  is  not  sufficient  under  the 
Judicial  Code;  but  it  may  be  read- 
ily adapted  to  the  requirements  of 
the  latter  by  substituting  for  Mr. 
Jury's  clause:  "shall  enter  in  the 
said  circuit  court  of  the  United 
States,  on  the  first  day  of  its  next 
session,  a  copy  of  the  record  in 
said  suit,  and  shall  well  and  truly 
pay  all  costs  that  may  be  awarded 
by  said  circuit  court  of  the  United 
States,  if  said  court  shall  hold  that 
said  suit  was  wrongfully  or  im- 
properly removed  thereto,"  the 
following:  "shall  enter  in  such  dis- 
trict court  of  the  United  States, 
within  thirty  days  from  and  after 
the  date  of  filing  said  petition,  a 
certified  copy  of  the  record  in  such 


suit,  and  shall  well  and  truly  pay 
all  costs  that  may  be  awarded  by 
said  district  court  of  the  United 
States,  if  said  court  shall  hold  that 
said  suit  was  wrongfully  or  im- 
properly removed  thereto,"  [and 
where  the  case  requires]  "and  also 
shall  well  and  truly  and  promptly 
appear  and  enter  special  bail  in 
said  suit"  [special  bail  being  orig- 
inally requisite  therein]. 

i:  §  29,  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  235. 

3  State  ex  rel.  Basket  v.  Wood- 
son, 164  Mo.  440,  64  S.  W.  774. 

4  Clark  V.  Guy,  114  Fed.  783. 
Not  signed  by  principal  removal 

bond  not  defective  under  Removal 
Act  March  13,  1888,  ch.  866,  §  3, 
25  Stats,  at  L.  435,  4  Fed.  Stats. 
Ann.,  1st  ed.,  p.  350,  such  signa- 
ture not  being  required  by  the  act. 
— Groton  Bridge  &  Mfg.  Co.  v. 
American  Bridge  Co.,  137  Fed.  284. 
Bond  capable  of  being  enforced 
was  all  that  was  required. — Alex- 
andria Nat.  Bank  v.  Bates  Co., 
Willis  C,  87  C.  C.  A,  643,  100  Fed. 
S3  9. 


I  Code  PI.  and  Pr.— 39 


uoy 


§  469  CODE  PLEADING  AND  PRACTICE.  [Pt.  I, 

comply  with  the  requirements  of  the  statute;'  the  peti- 
tioner for  removal  must  *'make  and  file  a  bond,  ivith  good 
and  sufficient  surety."  A  bond  conditioned  as  required 
by  the  former  Removal  Acts  is  insufficient  under  the 
Judicial  Code.® 

The  form  and  sufficiency  of  the  bond  on  removal  is 
governed  by  the  rules  of  law  determining  the  form  and 
sufficiency  of  bonds  in  general.  The  bond  should  properly 
describe  the  action,  and  failing  to  do  this  is  void;^  it 
should  properly  state  the  penal  sum  of  the  bond,  where  a 
penal  sum  is  required.^  A  seal  is  not  necessary,  except 
in  the  case  of  a  corporation,  in  those  states  in  which  a 
seal  has  been  declared  unnecessary  by  statute.^  A  defect 
in  a  bond,  which  is  not  jurisdictional,  may  be  amended;^** 
and  where  the  bond  does  not  comply  with  the  statute,  on 
objection,  a  new  bond  may  be  filed,  as  the  court  may  re- 
quire.^ ^  Formal  defects  in  the  condition  of  the  bond  do 
not  render  it  void  ;^-  thus,  it  has  been  said  that  variation 
in  the  wording  of  the  condition  in  a  bond  on  removal  from 
the  language  in  the  statute  providing  for  it,  where  the 
bond  is  otherwise  sufficient,  is  immaterial. ^^  One  compe- 
tent surety,  who  is  ''good  and  sufficient,"  is  all  that  is 
required  to  the  validity  and  sufficiency  of  a  bond  other- 

5  Farmers'  Loan  &  Trust  Co.  v.  on  motion  to  remand. — Johnson  v. 
Lake  Street  Elevated  R.  Co.,  173  Austin  Mfg.  Co.,  F.  C,  76  Fed. 
111.   439,   51   N.   E.   55,  affirming  68       616. 

111.  App.  666;  case  reversed  on  an-  9  Loop  v.  Winters'  Estate,  115 

other  point,  177  U.  S.  51,  44  L.  Ed.      YeA.  362. 
667,  20  Sup.  Ct.  Rep.  564. 

G  Missouri,    K.    &    T.    R.    Co.    v. 
Chappell,  206  Fed.  688. 

7  Willis  C.  Bates  Co.,  a  corpora- 
tion, sued,  a  bond  or  removal  de- 
scribing the  action  as  against  12  S  t  a  t  e  Improvement-Develop- 
Willis  C.  Bates,  was  held  void.—  ment  Co.  v.  Leininger,  226  Fed. 
Alexandria  Nat.  Bank  v.  Bates  Co.,  ^84.  See  Chase  v.  Erhardt,  198 
Willis  C.  87  C.  C.  A.  643,  160  Fed.      Fed.  305. 

839.  13  Ellis  v.  Atlantic  &  P.  R.  Co., 

8  Failure   to   do   so   not  material       134  Mass.  338. 

610 


10  Hodge  v.  Chicago  &  A.  R.  Co., 
57  C.  C.  A.  388,  121  Fed.  48. 

11  Chase   v.   Erhardt,   198   Fed. 
305. 


:h.  XVIII.]  BOND  SHOULD  BE  PRESEXTED.  §  469 

wise  unobjectionable.^'*  The  agent  of  a  company  on  whom 
service  is  made  may  execute  the  removal  bond  for  re- 
moval, although  his  authority  to  sign  the  bond  does  not 
specifically  appear  ;^^  but  it  is  otherwise  in  those  cases  in 
which  the  ^'company"  is  a  corporation.^''  A  removal 
bond  executed  by  a  foreign  surety  company  empowered 
to  do  business  within  the  state  in  which  the  action  was 
brought,  executed  by  an  attorney  in  fact,  with  the  corpo- 
rate seal  attached,  is  sufficient,^'^  although  the  bond  itself 
fails  to  show  that  such  foreign  corporation  has  complied 
with  the  laws  of  the  state  and  was  authorized  to  do  busi- 
ness therein.^  ^ 

Bond  should  he  presented  to  the  judge  of  the  state  court 
in  which  the  suit  is  pending  which  it  is  sought  to  have 
removed.^^  An  arbitrary  refusal  of  the  judge  of  the  state 
court  to  approve  the  sufficiency  of  the  surety  will  not  pre- 
vent removal.  The  applicant  for  removal  may  file  his 
bond  and  petition,-*^  procure  the  filing  of  a  certified  copy 
of  the  record  on  removal  in  the  federal  district  court 

14  Fayette  Title  &  Trust  Co.  v.  the  bond,  and  the  corporate  seal 
Maryland,  P.  &  W.  V.  Tel.  &  Tel.  was  not  attached.— Alexandria 
Co.,  180  Fed.  928;  Removal  Cases,  Nat.  Bank  v.  Bates  Co.,  Willis  C, 
100  U.  S.  475,  sub  nom.  Meyer  v.  8  C.  C.  A.  643,  160  Fed.  839. 
Delaware  R,  Constr.  Co.,  25  L.  Ed.  i7  Mutual  Life  Ins.  Co.  v.  Lang- 
593.  ley,   145   Fed.   415. 

Signature   of   bond    by   attorney  is  Brady  v.  McCrary  Co.,  J.  B., 

of  the  court,  as  one  of  the  sureties  244  Fed.  602. 

thereon,    with  another   competent  i9  Groton  Bridge  &  Mfg.  Co.  v. 

security,  the  state  law  forbidding  American  Bridge  Co.,  137  Fed.  284. 

such  attorney  to  become  a  surety,  "Presenting  to  a  judge  in  cham- 

does  not  vitiate  a  removal  bond.  bers  and   filing  it  in   the   state 

—Removal   Cases,   100   U.   S.   475,  court,   satisfies   the   s  t  a  t  u  t  e." — 

sub  nom.   Meyer  v.  Delaware  R.  Remington  v.  Central  Pac.  R.  Co., 

Constr.  Co..  25   L.   Ed.  593.  198  U.  S.  95,  49  L.  Ed.  959,  25  Sup.' 

15  Fayette  TiUe  &  Trust  Co.  v.  Ct.  Rep.  577;  Noble  v.  Massachu- 
Maryland,  P.  &  W.  V.  Tel.  &  Tel.  setts  Ben.  Assoc,  48  Fed.  337,  and 
Co.,  180  Fed.  928.  Loop    v.    Winters,    115    Fed.    362; 

i«  Removal  bond  executed  by  .Johnson  v.  Computing  Scales  Co., 
party  as  "treasurer"  of  corpora-      139  Fed.  339. 

tion,  it  not  appearing  the  party  as  120  As  to  filing  bond  and  petition, 

treasurer  had  authority  to  execute      see,  post,  §  470. 

611 


§470 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  I, 


within  thirty  days  thereafter,  and  proceed  in  the  federal 
court,  subject  to  a  motion  to  remand,  because  of  the  insuf- 
ficiency of  his  surety.^^ 


H^^o. 


4.  Filing  bond  and  petition — Sufficiency 


AND  PROCEEDING.  Formerly  the  bond  and  petition  for  re- 
moval of  a  cause  from  the  state  court  to  the  federal  court 
was  required  to  be  *' presented"  to  the  state  court^  in 
session,-  or  to  a  judge  thereof  in  chambers,^  as  well  as  be 
filed  in  the  court  in  which  the  suit  was  brought ;  but  under 
the  Judicial  Code^  a  suit  can  be  removed  from  the  state 
court  to  a  federal  court  by  regularly^  filing  a  good  and 
sufficient  petition  in  the  state  court,  only,^ — it  can  not  be 
by  consent  or  stipulation  of  the  parties,'^ — supported  by  a 
proper  bond,^  ''with  good  and  sufficient  sureties.'"^  The 
filing  of  a  sufficient  petition,  wdth  a  sufficient  bond,  under 
the  Judicial  Code,  removes  the  suit  automatically,^"  Avith- 


21  Groton  Bridge  &  Mfg.  Co.  v. 
American  Bridge  Co.,  137  Fed.  284. 

1  Oral  motion  in  state  court, 
held  to  be  a  sufficient  presenta- 
tion of  petition  in  Mays  v.  Newlin, 
143  Fed.  574. 

2  La  Page  v.  Day,  74  Fed.   977. 
Filing  in  state  court  in  vacation 

suit  was  remanded  in  Fox  v. 
Southern  R.  Co.,  80  Fed.  945,  and 
Howard  v.  Southern  R.  Co.,  122 
N.  C.  944,  29  S.  E.  778. 

3  See,  ante,  §  469,  footnote  19. 

4  §  29,  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  235. 

r.  On  return  day  is  said  in  Wil- 
liams V.  Miller,  249  Fed.  495. 

0  First  Nat.  Bank  v.  Frager,  34 
C.  C.  A.  51,  91  Fed.  689;  Mayo  v. 
Dockery,  108  Fed.  897. 

7  First  Nat.  Bank  v.  Frager,  34 
C.  C.  A.  51,  91  Fed.  689. 

8  See,  ante,  §  469. 

Bond  conditioned  for  filing  cer- 
tified record  either  in  the  federal 


district  court  of  the  district  in 
which  the  suit  was  commenced  in 
the  state  court,  or  in  the  federal 
district  court  of  another  district, 
is  insufficient  and  does  not  author- 
ize or  effect  a  removal. — Webb  v. 
Southern  R.  Co.,  248  Fed.  618. 

Defect  in  bond  should  be 
definitely  pointed  out,  or  it  will 
be  deemed  to  have  been  waived, 
—  as  by  a  general  demurrer.  — 
Bates  v.  Rogers  Construction  Co. 
(Ky.),  203  S.  W.  719. 

9  See  citation,  footnote  4,  this 
section. 

10  Ft.  Smith  &  W.  R.  Co.  v. 
Blevins,  35  Okla.  378,  130  Pac. 
525;  Montgomery,  City  of,  v. 
Postal  Telegraph-Cable  Co.,  218 
Fed.  471;  Brady  v.  McCrary  Co., 
J.  B.,  244  Fed.  602. 

State  court  ipso  facto  ousted  or 
joined,  on  filing  of  petition  for  re- 
moval and  b  o  n  d. — Ft.  Smith  & 
W.  R.  Co.  V.  Blevins,  35  Okla.  378, 
130  Pac.  525. 


612 


il 


oil.  X^'III.]  PETITION  INSUFFICIENT  ON   FACE.  §  470 

out  tlie  order^^  or  other  action  of  the  state  court  thereon. ^- 
The  filing  of  the  petition  and  bond  on  removal  must  l)e 
with  the  clerk  of  the  court  of  the  county  in  which  the 
venue  is  laid  in  the  complaint  filed  in  the  case.'^^  The 
burden  of  establishing  the  facts  alleged  in  the  petition 
for  removal  is  upon  the  party  seeking  such  removal.'^ 

Petition  insufficient  on  its  face  to  show  that  the  party 
is  ' '  entitled ' '  to  remove  the  suit,  the  state  court  may  deny 
a  removal  ;^^  and  under  such  a  petition  the  court  does 
lose,  and  is  not  called  upon  to  surrender,  its  jurisdiction  ;^^ 
for  the  rule  that  the  filing  of  a  petition  and  bond  for 
removal  terminates  the  state  court's  jurisdiction^'  applies 
in  those  cases,  only,  in  which  by  the  facts  alleged  in  the 
petition  or  sho\vn  by  the  petition  and  the  record,  the  party 
is  ** entitled"  to  a  removal.^**  That  is  to  say,  the  petition 
for  removal  must  show  on  its  face  a  removable  cause,  be- 
fore the  state  court  is  warranted  in  surrendering  its 
jurisdiction;^'-^  and  the  fact  that  a  state  court  accepts  a 
petition  and  bond  in  a  suit  that  is  not  removable,  and 
proceeds  no  further  in  the  cause,  this  wdll  not  oust  the 
state  court  of  jurisdiction.-*'  Where  the  petition  filed  in 
the  state  court  fails  to  allege  the  ser\dce  of  the  written 
notice  required,^^  the  petition  is  insufficient,  but  the  de- 

11  Montgomery,  City  of,  v.  Postal  is  Steed  v.  Henry,  120  Ark.  583, 

Telegraph  Cable  Co.,  218  Fed.  471.  igQ  S.  W.  508 

i.'Webb  V.  Southern  R.  Co.,  235  ,,  g^  Louis  &  S.  F.  R.  Co.  v. 
Fed.   578;    Brady  v.  McCrary   Co., 


Hodge   (Okla.),  157  Pac.  60;    Mis- 
souri, K.  &  T.  R.  Co.  of  Texas  v 


J.  B.,  244  Fed.  602. 

Clerk's  failure  to  mark  filed  the 
petition  and  bond,  and  the  failure      Smith  (Tex.  Civ.  App.),  164  S.  W 


of  the  judge  of  the  court  to  act 


885. 


upon   them  until  defendants'  i"  See  footnote  10,  this  section, 

answer  is  due,  immaterial.— Brady  is  Pruitt  v.  Charlotte  Power  Co., 

V.  McCrary  Co.,  J.  B.,  244  Fed.  602.      155  j^    q    4^6,  81  S.  E.  624. 

i3Groton  Bridge  &  Mfg.  Co.  v. 
American  Bridge  Co.,  137  Fed.  284. 

14  Gibson  v.  Chesapeake  &  O.  R. 
Co.,   215   Fed.   24;    Atlantic    Coast  ^^o  Montgomery,  City  of,  v.  Postal 

Line  R.  Co.  v.  Woods,  151  C.  C.  A.      Telegraph-Cable  Co.,  218  Fed.  471. 
651,  238  Fed.  917.  -n  See,  ante,  §  547. 

613 


10  Pruitt  V.  Charlotte  Power  Co., 
165  N.  C.  416.  81  S.  E.  624. 


§470 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  I, 


feet  can  be  objected  to  and  the  defense  asserted  on  motion 
to  remove,  only.-^  Where  the  allegation  in  the  petition 
for  removal  respecting  the  amount  in  controversy  is  con- 
tradicted by  the  record  on  file  in  the  state  court  depri\'ing 
the  federal  court  of  jurisdiction,  the  filing  of  a  certified 
copy  of  the  record  in  the  federal  district  court  does  not 
deprive  the  state  court  of  jurisdiction.-^ 

Order  of  reynoval  by  the  state  court  is  not  necessary  ;-* 
and  an  order  of  the  state  court  transferring  a  cause  to 
the  federal  district  court  has  been  said  to  not  be  appeal- 
able,-^ although  a  contrary  doctrine  has  been  held  ;-^  yet 
an  order  denying  removal  is  appealable.-"  On  petition 
and  bond  for  removal  on  ground  of  diversity  of  citizen- 
ship,-*^ the  allegations  in  the  petition  not  being  denied  by 
the  record,  the  state  court  must  order  the  case  removed 
to  the  federal  district  court.-** 

Removal  denied  by  the  state  court,  the  original  papers 
must  remain  on  file  in  such  state  court,  and  the  party 
petitioning  for  a  removal,  if  he  wishes  to  contest  the 
correctness  of  the  ruling  and  order,  may  procure  a  certi- 
fied copy  of  the  record  and  cause  the  same  to  be  filed  in 
the  federal  district  court  and  proceed  therein.^"    Where 


22  B  o  o  k  i  V.  Pullman  Co.,  220 
Mass.  71,  107  N.  E.  418. 

23  Bacon  v.  Iowa  Cent.  R.  Co., 
157  Iowa  493,   137  N.  W.   1011. 

24  Montgomery,  City  of,  v.  Postal 
Telegraph-Cable  Co.,  218  Fed.  471. 

25  Ewert  V.  Minneapolis  &  St. 
L.  R.  Co.,  128  Minn.  77,  Ann.  Gas. 
1916D,  1047,  150  N.  W.  224. 

Order  directing  certified  copy  of 
record  to  be  made  by  the  clerk, 
entered  in  the  state  court  after  it 
has  ordered  the  removal  of  the 
suit  to  the  federal  district  court, 
is  not  appealable,  because  the 
clerk  is  required  to  make  such 
copy  without   the   order   of   the 


court. — Mayo  v.  Dockeiy,  127  N.  C. 
1,  37  S.  E.  62. 

26  Lloyd  V.  Southern  R.  Co.,  166 
N.  C.  24,  81  S.  E.  1003,  holding 
that,  after  docketing  of  cause  in 
federal  court,  on  reversal  of  order 
of  removal  the  case  stands  as 
though  there  had  been  no  order 
of  removal. 

27  Pruitt  v.  Charlotte  Power  Co., 
167  N.  C.  598,  83  S.  E.  830. 

28  As  to  diversity  of  citizenship 
as  ground  for  removal  and  allega- 
tions as  to,  see,  ante,  §§  448,  461. 

29  Hyder  v.  Southern  R.  Co.,  167 
N.  C'.  584,  83  S.  E.  689 

so  Lawson  v.  Guthrie,  40  Okla. 
-f)8,  137  Pac.   1186. 


614 


Ch.  XVIII.]  FACTS  FOR  FEDERAL  COURT.  §  471 

the  state  court  refuses  to  surrender  jurisdiction,  the  right 
of  removal  must  be  deteraiined  as  a  matter  of  strict  right 
on  the  record,  as  it  appeared  in  the  state  court  when  the 
petition  and  bond  for  removal  was  presented  and  filed. ^^ 

§  471. Questions    of    fact  —  For    federal. 

COURT.  In  the  procedure  following  the  filing  of  the  peti- 
tion and  bond  for  the  removal  of  a  suit  from  a  state  to 
the  federal  district  court,  in  determining  the  sufficiency  of 
the  petition  and  the  establishment  by  it  and  the  record  of 
a  case  entitling  the  petitioner  to  a  removal,  there  is  a  well- 
marked  cleavage  in  the  respective  duties  and  jurisdiction 
of  the  state  court  and  the  federal  court.  Some  matters 
are  to  be  determined  in  the  first  instance  by  the  state 
court,  while  othors  can  be  considered  and  determined  by; 
the  federal  court,  only.  All  questions  or  issues  of  fact 
presented  by  the  petition  for  removal,  are  to  be  heard 
and  determined  by  the  federal  court.^  Thus,  diversity  of 
citizenship,  when  alleged  as  a  ground  or  cause  for  re- 
moval, is  a  question  of  fact,  the  hearing  and  determina- 
tion of  which  falls  exclusively  to  the  federal  court;-  and 
this  is  equalh^  true  whether  the  question  is  raised  and 
put  in  issue  by  the  fact  that  the  petition  contradicts,  in 
this  respect,  the  complaint  filed  in  the  state  court,  or  by 
the  contentions  of  the  opposite  party.^    But  the  federal 

31  Miller  V.  Soule,  221  Fed.  493.  &     S.     F.     R.     Co.     v.     Hodge 

See,  also,  discussion  and  author-  157  Pac.   60.     FED.  —  Hough  v, 

ities,  post,  §  472.  Societe    Electrique    Westinghouse 

1  ARK.— Steed   v.    Henry,    120  de   Russie,    231    Fed.    341;    Chesa- 

Ark.  583,  180  S.  W.  508.     MASS.—  peake  &  O.  R.  Co.  v.  Cockrell,  232 

Long   V.    Quinn    Bros.,    215    Mass.  U.  S.  146,  58   L.  Ed.  544,  34   Sup. 

85,    102    N.    E.    348;     Dunbar    v.  Ct.  Rep.  278. 

Rosenbloom,    119    N.    E.    829.  Issue  as  to  facts  alleged  in  peti- 

N.  C. — Hurst  V.   Southern  R.  Co.,  tion  may  be  raised  by  plea  to  the 

102  N.  C.  368,  78  S.  E.  434;  Lloyd  jurisdiction   or  by  answer  to  the 

V.  Southern  R.  Co.,  166  N.  C.  24,  petition   for  removal. — J  ones   v. 

81  S.  E.  1003;    Cogdill  v.  Clayton,  Casey-Hedges  Co.,   213   Fed.   43. 

170  N.  C.  526,  87  S.  E.  338;    Pat-  2  Miller  v.  Soule,   221   Fed.  493. 

terson  v.   Champion   Lumber   Co.,  3  Hyder  v.  Southern  R.  Co.,  167 

94   S.   E.   692.     OKLA.— St.   Louis  N.  C.  584,  83  S.  E.  689. 

615 


§472 


CODE   PLEADING    AND    PRACTICE. 


[Pt.I, 


court  is  restricted  as  to  such  issues  of  fact  as  control  the 
determination  of  the  right  of  the  petitioner  to  a  removal  ;■* 
and  except  those  questions  of  fact  depending  upon  the 
state  of  the  record  in  the  state  court  at  the  time  when  the 
petition  and  bond  for  removal  were  filed  in  the  state 
court,  w^hich  are  for  the  state  court  alone,^  The  question 
of  removability  of  a  suit  is  ultimately  for  the  federal 
court  f  and  it  has  been  said  that  the  question  whether  the 
petition  for  removal  complies  with  the  Removal  Act,  is 
one  for  the  federal  court  and  not  for  the  state  court,'  but 
this  is  denied  in  other  cases. ^ 

§  472. Questions  of  law — For  state  court. 

The  right  of  removal,  on  the  record,  is  one  of  law  for  the 
state  court  ;^  and  the  question  of  the  sufficiency  of  the 
petition  for  removal  is  one  of  law  for  the  state  court,- 
although  it  has  been  said  to  be  a  question  for  the  federal 
and  not  the  state  court  ;^  but  the  only  question  involved 
is  whether,  on  the  face  of  the  record,  a  cause  for  removal 
has  been  made  out.^  Where  the  allegations  in  the  petition 
for  removal  are  not  denied,  the  only  question  presented 


•4  Hollifield  V.  Southern  Bell  Tel. 
&  Tel.  Co.,  172  N.  C.  714,  90  S.  E. 
996. 

5  Munnss  v.  American  Agricul- 
tural Chemical  Co.,  216  Mass.  423, 
103  N.  E.  859. 

Removal  depends  on  record  and 
state  of  pleadings  in  state  court 
at  time  petition  and  bond  for  re- 
moval filed. — Munnss  v.  American 
Agricultural  Chemical  Co.,  2  16 
Mass.  423,  103  N.  E.  859. 

Whether  ad  damnum  clause  re- 
duced to  three  thousand  dollars 
(as  to  amount  in  controversy  con- 
trolling right  to  removal,  see,  ante, 
§  455)  or  less  before  the  filing  of 
the  petition  for  removal,  is  for  the 
state  court.— Munnss  v.  American 
Agricultural  Chemical  Co.,  2  16 
Mass.  423,  103  N.  E.  359. 


c  Webb  V.  Southern  R.  Co.,  235 
Fed.  578. 

T  Cropsey  v.  Sun  Printing  & 
Publishing  Assoc,  215  Fed.  132. 

8  See,  post,  §  472,  footnote  2. 

1  Miller  v.  Soule,  221  Fed.  493. 
Whether  case  removable  depends 
on  the  whole  state  of  the  record 
when  the  petition  is  presented, 
and  determination  as  a  right  of 
removal  must  be  first  determined 
by  the  state  court.  —  Miller  v. 
Soule,  221  Fed.  493. 

2  Landers  v.  Tracy,  171  Ky.  657, 
188  S.  W.  763;  Patterson  v.  Cham- 
pion Lumber  Co.  (X.  C),  94  S.  E. 
692. 

.'!  See,  ante,  §  471,  footnote  7. 

4  Long  v.  Quinn  Bros.,  215  Mass. 
85,  102  X.  E.  348;  Dunbar  v.  Rosen- 
bloom  (Mass.),  119  N.  E.  829. 


616 


ell.  XVIII.]  LAW  FOR  STATE  COURT.  §  472 

is  one  of  law  as  to  whether  a  right  of  removal  has  been 
established;^  where  removal  opposed,  state  court  must 
determine  whether  the  party  is  "entitled"  to  remove.*^ 
The  state  court  may  also  determine  whether  the  facts 
alleged  are  a  reasonable  course  or  ground  for  removal.'^ 
In  determining  whether  a  case  is  presented  for  removal 
entitling  the  petitioner  thereto,  it  is  the  duty  of  the  state 
court  to  examine  not  only  the  petition  for  removal,  but 
the  entire  record  of  the  case  as  well,^  and  must  take  as 
true  the  allegations  in  the  complaint  filed  in  the  state 
court^   as   well   as   the   allegations   in   the   petition   for', 
removal.^®    Citizenship  of  a  corporation  involved  depend- ' 
ing  upon  the  construction  to  be  given  to  the  act  of  incor-. 
poration,  the  state  court  may  determine  right  of  peti- 
tioner to  remove.^ ^    The  state  court  may  also  determine' 
when  the  answer  of  defendant  due,  under  the  laws  of  the 
state  or  the  rules  of  court,  where  that  is  controlling  on 
the  right  of  removal,  although  the  final  decision  of  the 
question  rests  with  the  federal  district  court.^^ 

Fact  ivhether  removal  effected  by  the  proceeding  there- 
for, being  a  matter  depending  upon  the  record  made  by 
filing  the  petition  and  bond  in  the  state  court,  is  a  matter 
the  state  court  may  determine  for  itself  ;^^  and  when  it 
appears  from  the  face  of  the  record  that  the  suit  has  not 
been  duly  removed,  the  state  court  must  retain  jurisdic- 
tion.i^ 

5  Jones  V.  Casey-Hedges  Co.,  213  n  Cox  v.  Atlantic  Coast  Line  R. 

Fed.  43.  Co.,  166  N.  C.  652,  82  S.  E.  979. 

0  Orr  V.  Baltimore  &  O.  R.  Co.,  12  Stephens  v.  Ringling  (S.  C), 

83    Misc.    (N.    Y.)    221,    145    N.    Y.  86  S.  E.  683. 

Supp.  378.  13  Hurst  v.  Southern  R.  Co.,  162 

TCogdill   V.   Clayton,   170   N.   C.  N.  C.  368,  78  S.  E.  434;    St.  Louis 

526,  87  S.  E.  338.  &  S.  F.  R.  Co.  v.  Hodge   (Okla.), 

s  Missouri,    K.    &    T.    R.    Co.    v.  157    Pac.    60;    United   Brothers   of 

Chappell,  206  Fed.  688.  Friendship   and   Sisters   of  the 

!•  P  o  w  e  11   V.    Southern   R.    Co.  Mysterious    Ten    of    Oklahoma    v. 

(S.  C),  96  S.  E.  292.  Delancy  (Okla.),  157  Pac.  1150. 

10  Chesapeake    &    O.    R.    Co.    v.  1 4  Bacon  v.  Iowa  Cent.   R.   Co., 

Cockrell,  232  U.   S.  146.  58   L.   Ed.  157  Iowa  493,  137  N.  W.  1011. 

544,  34   Sup.  Ct.  Rep.  278,  Record    made   by   filing   petition 

617 


§  473  .       CODE   PLEADING    AND    PRACTICE.  [Pt.  I, 

Fraudulent  joinder  of  parties  defendant  to  prevent  re- 
moval, being  alleged  in  the  petition  for  removal,  the  state 
court  may  pass  upon  the  proper  joinder  of  the  defen- 
dants,^^ and  the  sufficiency  of  the  petition  ;^^  and  where 
the  fraud  is  alleged  in  general  terms,  it  seems  to  be  a 
matter  exclusively  for  the  state  court.^"^ 

<§  473.  5.  Filing  certified  copy  of  eecord  in  fed- 
eral COURT.  On  the  removal  of  a  suit  from  a  state  court 
to  the  federal  district  court,  a  certified  copy  of  the  record 
in  the  state  court  must  be  filed  in  the  federal  court  within 
thirty  days  from  the  date  of  the  filing  of  the  bond  and 
petition  on  removal.^  The  provision  of  the  Judicial  Code 
in  this  regard  is  to  be  strictly  construed,  and  a  filing  of  a 
certified  copy  of  the  record  more  than  thirty  days  after 
the  filing  of  the  petition  and  bond  on  removal  will  be  too 
late,  even  though  the  state  court  does  not  act  on  such 
petition  and  bond  at  the  time  they  are  filed ;-  on  the  other 
hand,  the  provision  has  been  said  not  to  be  mandatory, 
and  that  the  matter  is  within  the  discretion  of  the  federal 
court  ;^  but  this  holding  is  thought  not  to  be  in  harmony 
with  the  letter  of  the  Judicial  Code,  and  the  strict  con- 
struction to  be  given  to  it.  The  transmission  of  the  certi- 
fied record  in  the  state  court  to  and  filing  the  same  in  the 

for  removal  can  not  be  questioned  i7  Pruitt  v.  Charlotte  Power  Co., 

by   state   court— Bacon  v.   Iowa  165  N.  C.  416,  81  S.  E.  624. 

Cent.    R.    Co.,    157    Iowa    493,    137  i  Federal  Judicial   Code,  §  29,  5 

N.  W.  1011.  Fed.  Stats.  Ann.,  2d  ed.,  p.  235. 

15  Carland  &  Co.,  J.  C,  v.  Burke,  Petition  and  bond  filed  in  the 
197  Ala.  435,  73  So.  10;  HoUifleld  state  court,  formerly  perfected  the 
V.  Southern  Bell  Tel.  &  Tel.  Co.,  removal  of  the  cause,  unless  the 
172  N.  C.  714,  90  S.  E.  996.  petition,   in  connection  with  the 

16  Lloyd  V.  Southern  R.  Co.  166  record,  showed  the  case  to  be  a 
N.  C.  24,  81  S.  E.  1003.  nonremovable  one. — S  t  e  v  e  n  s  v. 

Facts  sufficient  to  show  fraudu-  Illinois  Cent.  R.  Co.,  192  Fed.  956. 
lent   joinder  issue   to   be.de  ter-  2  Waverly  Stone  &  Gravel  Co.  v. 

mined  by  federal  court— Lloyd  v.      Waterloo,  C.  F.  &  N.  R.  Co.,  239 
Southern  R.  Co.,  166  N.  C.  24,  81      Fed.  561. 

S.  E.  1003.  3  Chase  v.  Erhardt,  198  Fed.  305. 

618 


1 


cll.XN'III.]  TIME    TO   PLEAD — REMAND.  §§4(4,475 

federal  court  is  the  duty  of  the  party  removing,^  not  of 
the  clerk  of  the  state  court;"'  but  after  the  petition  and 
Ijond  have  been  filed  in  the  state  court  the  opposing  party 
may  at  once,  or  at  any  time  mthin  thirty  days  from  the 
date  thereof,  procure  a  certified  copy  of  the  record  in  the 
state  court  and  file  the  same  in  the  federal  court,  and  the 
latter  court  may  require  the  removing  party  to  plead.^ 

§  474.  6.  Time  to  plead  in  federal  court — Na- 
ture OF  PLEA.  The  federal  Judicial  Code^  provides  that 
the  certified  copy  ** being  entered  within  thirty  days  as 
aforesaid  in  the  district  court  of  the  United  States,-  the 
parties  removing  the  said  cause  shall,  within  thirty  days 
thereafter,  plead,  answer,  or  demur,  to  the  declaration  or 
complaint  in  said  cause."  The  defendant  is  entitled  to 
file  any  kind  of  a  plea  that  he  is  advised,  including  a  plea 
in  abatement^  for  want  of  proper  service  of  process  in 
the  state  court,'*  as  well  as  a  demurrer  or  answer  on  the 
merits. 

§  475.  Eemand  of  cause^ — In  general.  The  federal 
Judicial  Code  provides  that  if,  in  any  suit  removed  from 

4  Federal  Judicial  Code,  §  29,  5  i  Construction  of  statutory  pro- 
Fed.  Stats.  Ann.,  2d  ed.,  p.  235.  vision   seems   to  be   without  diffl- 

5  Hatcher's  Adm'x  v.  Wadley,  culty,  though  there  is  manifest 
84  Fed.  913.  some    misapprehension    of    the 

« Consolidated    Traction    Co.    v.  powers  and  duties  of  the  federal 

Guarantors'  Liability  &  Indemnity  district  court.  The  federal  Judicial 

Co.,  78  Fed.  657;    affirmed,  Bryar  Code,   §37,  5  Fed.   Stats.  Ann.  2d 

V.   Campbell,   33   C.   C.  A.   236,  90  ed.,  p.  398,  provides  for  two  things: 

Fed.  690,  177  U.  S.  649,  44  L.  Ed.  (1)   Where  a  suit  is  improperly 

926,  20   Sup.  Ct.  Rep.  794.  commenced  in  the  federal  district 

1  §  29,  5  Fed.  Stats.  Ann.,  2d  ed.,  court,  and   (2)   where  a  suit  is 

p.  235.  "wrongfully    or    improperly"     r  e- 

-'  See,  ante,  §  473.  moved  from  a  state  court  into  that 

•!  As  to  plea   in  abatement,  see,  court;  the  provision  reading:     "If 

ante,    §  232.  in  any  suit  commenced  in  the  dis- 

»  Garvey   v.   Compania   Metalur-  trict  court,  or   removed   from  a 

gica  Mexicana,  222  Fed.  722;  Cain  state  court  to  a  district  court  of 

v.  Commercial  Pub.  Co.,  232  U.  S.  the  United  States,  it  shall  appear 

124,  58  L.  Ed.  534,  34  Sup.  Ct.  Rep.  to  the  satisfaction,"   etc.,   as  sub- 

2S4.  stantially    quoted    in    the    text   to 

619 


§476 


CODE   PLEADING   AND   PRACTICE. 


[Pt.I. 


a  state  court  to  a  district  court  of  the  United  States,  it 
shall  appear  to  the  satisfaction  of  said  district  court,  at 
any  time  after  such  suit  has  been  removed  thereto,  that 
such  suit  does  not  really  and  substantially  involve  a  dis- 
pute or  controversy  properly  within  the  jurisdiction  of 
said  district  court,  or  that  the  parties  thereto  have  been 
improperly  or  collusively  made  or  joined,  either  as  plain- 
tiffs or  defendants,  for  the  purpose  of  creating  a  case 
removable  under  the  Judicial  Code,  the  said  district  court 
shall  proceed  no  farther  therein,  but  shall  remand  it  to 
the  court  from  which  it  was  removed,  and  shall  make  such 
order  as  to  costs  as  shall  be  just.^  Where  a  motion  to 
remand  is  made  it  is  the  duty  of  the  federal  district  court 
to  consider  and  determine  (1)  whether  the  proceeding  in 
the  state  court  was  a  suit  or  controversy  to  which  the 
judicial  power  of  the  United  States  extends ;  (2)  if  such  a 
suit  or  controversy,  was  it  removable  to  the  district  court 
of  the  United  States ;  and  (3)  if  removable,  was  it  in  fact 
removed.^ 


§476. 


On  whose  motion — Court's  own  motion. 


Whenever  a  suit  has  been  improperly  removed  from  a 
state  court  to  the  federal  district  court,  it  must  be  re- 
manded,^ either  (1)  on  the  court's  own  motion,  or  (2)  on 


this  section,  "the  said  district 
court  shall  proceed  no  further 
therein,  but  shall  dismiss  the  suit 
[where  commenced]  or  remand 
[where  removed]  it,"  etc.  It  is 
submitted  that  under  all  known 
rules  of  statutory  construction,  as 
well  as  the  ordinary  construction 
of  English  sentences,  the  word 
"dismiss"  relates  to  and  affects 
'"any  suit  commenced"  only,  and 
has  no  reference  to  suits  "wrong- 
fully or  improperly"  removed  into 
the  district  court, — which  are  to  be 
remanded;  and  that  the  federal 
district  court  has  no  jurisdiction  or 


power,  under  this  statutory  pro- 
vision, to  dismiss  a  suit  wrong- 
fully or  improperly  removed 
thereto.  For  this  reason  I  omit 
the  word  "dismiss"  from  my  catch- 
line. 

2  Federal  Judicial  Code,  §  37,  5 
Fed.  Stats.  Ann.,  2d  ed.,  p.  398. 

3  South  Dakota  Cent.  R.  Co.  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  73 
C.  C.  A.  176,  141  Fed.  578. 

1  Pollard  v.  Dwight,  8  U.  S.  (4 
Cr.)  421,  2  L.  Ed.  666.  See:  Ayers 
V.  Western  R.  Corp.,  48  Barb. 
(N.  Y.)  140,  32  How.  Pr.  351;  re- 
versed on  another  point,  45  N.  Y. 
•"•60;  Colcord  v.  Wall,  2  Miles  (Pa.) 


620 


Ch.  XVIII.]  REMAND MOTION    OF  PARTY.  §  477 

motion  of  one  of  the  parties  thereto.  The  court,  of  its 
own  motion  may,  and  should,  remand  a  cause  whenever 
the  jurisdiction  of  that  court  does  not  appear  upon  the 
face  of  the  papers  before  it,-  or  that  the  cause  was  a 
removable  one  f  but  the  court  will  not,  of  its  own  motion, 
seek  for  formal  defects,  inquire  into  the  regularity  of  the 
issue  of  process  or  the  sufficiency  of  its  service,  and  the 
like.^  Whenever,  on  the  face  of  the  record,  a  want  of 
jurisdiction  plainly  appears,  either  of  the  parties  to  the 
action  or  of  the  subject-matter  involved  therein,  it  is  the 
duty  of  the  federal  district  court  to  remand  the  cause,  of 
its  own  motion.^ 

§  477. On  motion  of  party.    Either  party  to 

a  suit  removed  into  the  federal  court  may  move  that  it  be 
remanded  to  the  state  court.  One  of  two  or  more  joint 
defendants  may  move  to  remand  where  it  is  made  to 
appear  that  the  cause  was  not  removable  because  of  a 
want  of  a  separate  controversy.^  A  plaintiff  who  de- 
scribes himself  in  the  complaint  filed  in  the  original  suit 
in  New  York,  against  a  citizen  of  New  York,  as  "of  said 

462;    State  ex  rel.  Hodson  v.  Cir-  2   Sup.  Ct.  Rep.   424;    Cameron  v. 

cuit  Judge,  33  Wis.  132.  Hodges,   127  U.   S.  322,  32   L.   Ed. 

2  See:    Kaeiser  v.   Illinois  Cent.  132,  8  Sup.  Ct.  Rep.  1154. 

R.  Co.,  6  Fed.  1;  Dwyer  v.  Peshall,  Improperly  removed,  though  re- 

32   Fed.   497;    Keeney  v.  Roberts,  movable,  of  its  own  motion  federal 

39  Fed.  629;   Indiana  v.  Tolleston  district  court  should  remand  of  its 

Club,  53  Fed.  18;   Brath  v.  Coles,  own    motion. — Waverly    Stone    & 

9  C.  C.  A.  81,  19  U.  S.  App.  646,  Gravel    Co.   v.   Waterloo,   C.   F.   & 

60    Fed.    4  6  6;     International    &  N.  R.  Co.,  239  Fed.  651. 

G.  N.  R.  Co.  V.  Hoyle,  79  C.  C.  A.  3  Crehore  v.  Ohio  &  M.  R.  Co., 

128.  149   Fed.   180;    Harrington  v.  131  U.  S.  240,  33  L.  Ed.  144,  9  Sup. 

Great  Northern  R.   Co.,   169   Fed.  Ct.  Rep.  692. 

714 ;  Charrion  v.  Romart  Mfg.  Co.,  4  Mackay  v.  Uinta  Development 

236  Fed.  1011;   Waverly  Stone  &  Co..  229  U.  S.  173,  57  L.  Ed.  1138, 

Gravel  Co.  v.  Waterloo,  C.  F.   &  33  Sup.  Ct.  Rep.  638. 

N.  R.  Co.,  239  Fed.  651;    Morgan  5  Indiana  v.   Tolleston   Club,   53 

V.  Gay,  86  U.  S.  (19  Wall.)   81,  22  Fed.  18. 

L.  Ed.  100;  Pittsburg,  C.  &  St.  L.R.  i  Thompson    v.    Chicago,    St.    P. 

Co.  V.  Ramsey,  89  U.  S.  (22  Wall.)  &  K.  C.  R.  Co.,  60  Fed.  773;  Inter- 

322,  22  L.  Ed.  823;  Hilton  v.  Dick-  national  &  G.  N.  R.  Co.  v.  Hoylc, 

inson,  108  U.  S.  165,  27  L.  Ed.  688,  79  C.  C.  A.  128,  149  Fed.  180. 

621 


§§478,479  CODE  pleading  and  practice.  [Pt.  J, 

New  Haven,'*  may  move  to  remand  the  cause,  and  will  not 
be  estopped,  by  such,  description,  from  showing  that  he  is 
a  citizen  of  New  York.^  A  cause  may  be  remanded  on  the 
motion  of  the  party  removing  the  suit  from  the  state 
court  where  it  is  made  to  appear  to  the  federal  district 
court  that  it  has  no  jurisdiction  as  contradistinguished 
from  merely  defective  jurisdiction.^ 

§  478.    Grounds  for  remand — In  general.  A  cause 

or  ground  for  remand  is  (1)  any  reason  why  the  cause 
should  not  have  been  removed  from  the  state  court;  (2)  a 
development  in  the  federal  court  depriving  it  of  jurisdic- 
tion of  (a)  the  parties  or  (b)  the  subject-matter  of  the 
controversy;  (3)  failure  to  comply,  in  the  removal  pro- 
ceedings, with  mandatory  provisions  of  the  Removal  Act 
as  embodied  in  the  federal  Judicial  Code,  and  (4)  irregu- 
larities affecting  (a)  the  jurisdiction  of  the  federal  court 
or  (b)  a  substantial  interest  of  the  opposite  party  and 
(c)  which  are  not  amendable  in  the  federal  court.  Some 
concrete  illustrations  of  these  rules  may  be  assistful  to 
the  practitioner,  but  space  will  not  peraiit  of  an  exhaus- 
tive collection  of  the  various  instances,  of  the  classes  or 
kinds  of  causes  to  be  found  in  the  adjudicated  cases,  even 
those  decided  since  the  adoption  of  the  federal  Judicial 
Code. 

<^  479. Causes  remanded  when.  A  cause  re- 
moved from  the  state  court  to  the  federal  district  court  of 
the  district  will  be  remanded  where  the  affidavit  for  re- 
moval, on  its  face,  shows  an  improper  removal;^  an 
amendment  in  the  federal  court  so  as  to  eliminate  a  fed- 
eral question ;2  because  action  under  federal  employers' 

2Edgerton  v.  Stain,  91  Fed.  Torrence  v.  Shedd,  144  IT.  S.  527, 

932.  36  L.  Ed.  528,  12  Sup.  Ct.  Rep.  726. 

3  See:    Wabash   R.    Co.   v.   Bar-  i  Cameron  v.  Hodges,  127  U.  S. 

hour,  19  C.  C,  A.  546,  43  U.  S.  App,  322,  32  L.  Ed.  132,  8  Sup.  Ct.  Rep. 

102,  73  Fed.  513;   Mansfield,  C.  &  1154. 

L.  M.  R.  Co.  V.  Swan,  111  U.  S.  379,  2  Fischer  v.   Star  Co.,   227  Fed. 

28  L.  Ed.  462,  4  Sup.  Ct.  Rep.  510;  955. 

622 


Ch.  XVIII.]  CAUSE  REMANDED  WHEN.  §  479 

liability  act,'  and  for  that  reason  not  removable  ;^  because 
written  notice  of  petition  and  bond  not  given^  as  re- 
quired,^ although  copies  of  the  petition  and  bond  may 
have  been  served;^  citizenship  of  parties  not  sufficiently 
disclosed  by  the  certified  copy  of  the  record  in  the  state 
court,  either  as  to  (a)  when  the  action  was  brought  or 
(b)  when  the  petition  for  removal  was  filed  ;^  demurrer 
after  removal  sustained  in  the  federal  district  court  to 
one  of  the  causes  of  action  and  thus  reducing  the  amount 
in  controversy  between  the  parties  below  the  amounf* 
necessary  to  give  the  federal  court  original  jurisdiction  ;^* 
dispute  or  controversy  not  properly  within  jurisdiction 
of  federal  district  court  ;^^  diversity  of  citizenship  alleged 
but  not  established,^-  or  being  gi^ound  of  removal  the  fed- 
eral district  court  has  no  jurisdiction  of  the  controversy  ;^^ 
doubt  as  to  jurisdiction  of  the  federal  district  court,^* 
where  it  is  a  substantial  doubt  ;i^  doubt  as  to  whether  the 
cause  arose  under  the  laws  of  the  United  States  ;^'5  doubt 
;is  to  whether  suit  properly  removed,^^  or  as  to  its  remov- 
;ibility,^^  or  as  to  party's  right  of  removal i^*'  doubt  as  to 

."  Patton  V.  Cincinnati,  N.  O.  &  is  Gates  v.  Allen,  149  U.  S.  451, 

T.  P.  R.  Co.,  208  Fed.  29.  37  L.  Ed.  804,  13  Sup.  Ct.  Rep.  883,' 

■1  Federal  Judicial  Code,   §  28,  5  977. 

Fed.  Stats.  Ann.,  2d  ed.,  p.  17.  14  Western    Union    Tel.    Co.    v. 

See,  also,  ante,  §  439.  Louisville  &   N.   R.   Co.,  201   Fed. 

5  Goins  V.  Southern  Pac.  Co.,  198  932;    Harley   v.   Fireman's   Fund 
Fed.  432;   Leland  v.  Northwestern  Ins.  Co.,  245  Fed.  471. 
Stevedore  Co.,  209  Fed.  626.  Contra:   Caldwell  County  Drain- 

6  See,   ante,   §  457.  age  Dist.  No.  19  v.  Chicago,  M.  & 

7  Loland  v.  Northwestern  Steve-  St.  P.  R.  Co.,  198  Fed.  253. 

dore  Co.,  209  Fed.  626.  ir.  Western    Union    Tel.    Co.    v. 

8  Jackson  v.  Allen,  132  U.  S.  27,  Louisville   &   N.  R.   Co.,   201   Fed. 
33  L.  Ed.  249,  10  Sup.  Ct.  Rep.  9.  932. 

9  See,  ante,   §  455.  ic  Orr  v.  Baltimore  &  O.  R.  Co., 

10  Jones  v.  Western  Union  Tel.      242  Fed.  608. 

Co.,  233  Fed.  301.  it  Hansen   v.    Pacific  Coast   As- 

11  Ayers   v.  Wiswall,    112  U.   S.  phalt  Cement  Co.,  243  Fed.  283. 
187,  28  L.  Ed.  693,  5  Sup.  Ct.  Rep.  is  Mississippi  River  Power  Co., 
90.  In  re,  241  Fed.  194. 

12  Sullivan    v.    Loyd,    213    Fed.  lo  Strother  v.   Southern  Pac.  R. 
275.  Co.,  220  Fed.  731. 

623 


§480  CODE  PLEADING   AND   PRACTICE.  f'         [Pt.  I, 

whether  petition  was  filed  in  time,^*'  because  of  state 
court's  extension  of  time  in  which  to  plead  without  fixing 
a  definite  date  therefor;  fraudulent  joinder  alleged  as 
ground  of  removal,  and  the  liability  of  one  of  the  defen- 
dants is  fairly  debatable  ;-^  neither  party  to  the  action  a 
resident  of  the  state  when  the  suit  was  commenced ;--  not 
a  proper  removal  of  the  suit,  although  the  cause  is  a 
removable  one  ;-^  on  any  ground  on  which  the  removal  of 
the  suit  could  have  been  attacked  in  the  state  court;-* 
presence  of  other  parties  in  the  suit  being  necessary  to  a 
determination  of  the  controversy;-^  want  of  jurisdiction 
in  the  federal  district  court  because  of  lack  of  diversity 
of  citizenship,  where  the  ground  of  removal  is  prejudice 
and  local  influence,-^  and  the  like. 

<§  480. Causes  not  remanded  when.    Among 

the  class  or  kinds  of  cases  in  which  a  cause  removed  from 
a  state  court  to  the  federal  district  court  of  the  district 
will  not  be  remanded  may  be  given  the  following :  Because 
the  state  court  transmitted  the  original  papers  instead  of 
certified  copies  thereof,^  as  required  by  the  federal  Ju- 
dicial Code ;-  because  the  title  to  the  land  sought  to  be 
condemned  under  the  power  of  eminent  domain  had  been 
transferred  to  a  nonresident  before  the  condemnation 
proceedings  were  commenced,  in  the  absence  of  a  shomng 
of  collusion  and  fraud,  on  the  alleged  ground  that  the 
sole  purpose  of  such  transfer  was  to  secure  a  forum  in 
which  more  liberal  compensation  as  damages  might  be 
obtained  than  could  be  secured  in  the  state  court  f  because 
the  bill  in  the  state  court  does  not  state  an  equitable  cause 

20  Kelly    V.    Virginia    Bridge    &  24  Cropsey    v.    Sun    Printing    & 
Iron  Co.,  203  Fed.  566.  Publishing  Assoc,  215  Fed.  132. 

21  McGraney  v.  Butte  Mines  Co.,  25  Sullivan  v.  Lloyd,  213  Fed.  275. 
199  Fed.  671.  26  Knapp  v.  Troy  &  B.  R.  Co.,  87 

22  O'Neil  V.   Birdseye,   244   Fed.  U.  S.  (20  Wall.)  117,  22  L.  Ed.  328. 
254.  See,  ante,  §  450. 

23  Waverly  Stone  &  Gravel  Co.  i  Miller  v.  Soule,  221  Fed.  493. 
V.  Waterloo,  C.  H.  &  N.  R.  Co.,  239  2  See,  ante,  §  473. 

Fed.  561.  3Bensel,  In  re,  124  C.  C.  A.  251, 

624 


ch.  XVIII.]  TIME  OF  REMAND.  §  481 

of  action  cognizable  in  a  federal  court  of  equity,  where  a 
cross-bill,  which  has  been  filed  in  the  suit,  does  ;^  consent 
or  stipulation  of  the  parties  can  not  give  the  federal  dis- 
trict court  jurisdiction  of  a  removed  cause,-^  and  consent 
or  stipulation  can  not  give  that  court  jurisdiction  to  re- 
mand a  cause ;"  defect  in  petition  for  removal  in  not  alleg- 
ing organization  of  a  corporation,  which  defect  may  be 
cured  by  amendment  after  judgment;'^  doubt  as  to  the 
jurisdiction  of  the  federal  district  court,"*  but  the  weight 
of  authority  and  the  better  reason  to  the  contrary  f  mere 
irregularities  in  the  proceeding  for  removal  whicli  can 
be  amended,  and  which  have  worked  no  harm  to  the  oppo- 
site party  ;^°  removable  on  the  ground  of  a  separable  con- 
troversy, although  the  petition  was  apparently  not  drawn 
on  that  theory, ^^  and  the  like. 

§  481.    Time  of  remand.  The  federal  Judicial  Code 

especially  pro\ddes  that,  on  proper  cause  therefor  being 
shown,  a  cause  removed  to  the  federal  district  court  from 
a  state  court  may  be  remanded  to  the  state  court  ''at  any 
time  after  such  suit  has  been  removed."^  Applying  the 
statutory  provision  regulating  remand,  the  courts  have 
held  that  the  remanded  order  should  be  made  as  soon  as 
it  is  called  to  the  attention  of  the  federal  district  court 
that  the  condition  of  the  record  on  removal  does  not  show 
facts  essential  to  confer  jurisdiction  on  the  federal  court.- 
After  an  amended  complaint  in  the  federal  district  court 
and  an  answer  thereto  on  the  merits,  if  it  appears  to  the 

206    Fed.    369,    affirming    Ashokan  9  See,   ante,    §  479,    footnotes    14 

Dam,  In  re,  190  Fed.  413.  and  15. 

iBaum    V.    Longwell,    200    Fed.  lo  Cropsey    v.    Sun    Printing    & 

^^^-  Publishing  Assoc,  215  Fed.  132. 

5  See,  ante,  §§  437,  441. 

6  Lawton  v.  Blitch,  30  Fed.  641.  ''  ^^^^°  ^-  American  Surety  Co., 

7  Fentress   Coal   &  Coke   Co.   v.  ^^^  ^®**-  ^'^^• 
Elmore,  153  C.  C.  A.  254,  240  Fed.  ^  See,  ante,  §  478. 

328.  2  Olds'    Wagon   Works   v.   Bene- 

s  Caldwell  County  Drainage  Dist.      diet,  14  C.  C.  A.  285,  32  U.  S.  App. 

No.  19  V.  Chicago,  M.  &  St.  P.  R.       116,  67  Fed.  1. 

Co..  198  Fed.  253. 

I  Code  PI.  and  Pr. — 40  g25 


§481  CODE  PLEADING   AND   PRACTICE,  [Pt.  I, 

court  that  no  federal  question  is  involved,  the  ground  on 
which  removal  was  had,  the  cause  will  be  remanded.^  At 
any  time  during  the  pendency  of  the  suit  in  the  federal 
district  court,  when  it  is  manifest  from  the  record  that 
the  cause  was  improperly  removed  it  will  be  remanded, — 
e,  g.,  where  it  does  not  involve  a  dispute  or  controversy 
properly  \\dthin  the  jurisdiction  of  the  federal  district 
court.^  Even  during  the  trial  of  the  cause  in  the  federal 
district  court,  it  is  the  duty  of  that  court  to  remand  the 
cause  where  it  is  made  to  appear  from  the  testimony,  in 
connection  with  the  record,  (1)  that  the  cause  was  im- 
properly removed,  or  (2)  that  the  federal  district  court 
is  without  jurisdiction.^  Delay  of  over  a  year  after  a 
cause  has  been  removed  from  a  state  court  before  filing 
a  motion  to  remand  on  the  ground  that  the  petition  for 
removal  was  not  filed  in  time  in  the  state  court,  the 
motion  to  remand  comes  too  late;^  where  there  was  a 
delay  for  a  like  time,  and  the  cause  had  been  transferred 
to  the  equity  docket  of  the  federal  district  court  and  re- 
ferred to  a  special  master,  it  was  held  that  the  motion  to 
remand,  for  defects  not  jurisdictional,  came  too  late ;"'  and 
where  an  objection  to  the  removal  of  a  cause  from  tlie 
state  court  was  made  in  the  federal  court  after  the  testi- 
mony had  all  been  taken,  and  the  cause  was  ready  for 
hearing,  and  nearly  three  years  after  the  removal  from 
the  state  court,  it  was  held  to  be  too  late.* 

■5  Charrion  v.  Romort  Mfg.  Co.,  L.  J.  12,  Fed.  Cas.  No.  7596;  Hartog 

236  Fed.  1011.  v.   Memory,   23   Fed.   835;    Collins 

■lAyers    v.    Wiswall,    112    U.    S.  v.  Wellington,  31  Fed.  246;    Rich- 

187,  28  L.  Ed.  693,  5  Sup.  Ct.  Rep.  mond  &  D.  R.  Co.  v.  Findley,  32 

90;    Cameron  v.  Hodges,  127  U.  S.  Fed.   641;    Blythe  v.  Hinckley,  84 

322,  32  L.  Ed.  132,  8  Sup.  Ct.  Rep.  Fed.  216. 
1154.  6  Miller  v.  Kent,  18  Fed.  561. 

5  See:    Ryan  v.   Young,    9   Biss.  7  Wyly  v.  Richmond  &  D.  R.  Co., 

63,   Fed.   Cas.   No.    12188;    Deakin  63  Fed.  487. 

V.  Lea,  11  Biss.  27,  Fed.  .Cas.  No.  s  French,    Trustee,    v.    Hay,    89 

3695;    Dennistoun  v.   Draper,   5  U.    S,    (22   Wall.)    238,   sub  n  o  m. 

Blatchf.  336,  Fed.  Cas.  No.  3804;  French,    Trustee,    v.    Stewart,    22 

Kain  v.  Texas  Pac.  R.  Co.,  3  Cent.  L.  Ed.  854. 

626 


C'h.  XV^IIL]  COSTS  ON  REMAND,  §  482 

After  judgment  in  the  federal  district  court  it  has  been 
said  that  a  cause  can  not  be  remanded  to  the  state  court,^ 
although  the  contrary  has  been  held  where  the  amount  in 
controversy  was  below  the  amount  conferring  original 
jurisdiction  on  the  federal  district  court  ;i'*  but  the  cause 
may  be  remanded  after  trial  and  verdict,  when  a  motion 
to  remand  was  made  during  the  trial  and  the  court  re- 
served its  decision/^  such  a  motion  to  remand  being 
equivalent  to  a  special  plea  to  the  jurisdiction  of  the 
federal  district  court.  ^- 

§  482.    Costs  on  remand.     The  federal  Judicial 

Code  provides  that  on  remand  the  federal  district  court 
''shall  make  such  order  as  to  costs  as  shall  be  just."^  The 
courts  have  said  that  on  remand  by  the  federal  court  to 
which  removed,  the  costs  incurred  in  such  federal  court 
should  be  paid  by  the  party  wrongfully  or  improperly 
causing  the  removal,-  and  the  court  may  properly  allow 
an  attorney's  docketing  fee  of  ten  dollars.^*  In  other 
words,  the  party  wrongfully  or  improperly  removing  the 
cause  must  pay  all  costs  from  the  time  of  the  removal 
from  the  state  court.^  Hence  it  follows  that  in  a  case 
where  the  cause,  after  removal,  is  carried  from  the  fed- 

0  Muhlenburg  County  v.  Citizens'  i  See,  ante,  §  475. 

Nat.  Bank,  65  Fed.  537.  2  K  a  n  s  a  s    City    So.   R.    Co.    v. 

Order  after  final  decree  the  Su-  Prunty,  66  C.  C.  A.  163,  133  Fed. 

preme  Court  of  the  United  States  13;     Pullman    Palace-Car    Co.    v. 

remanding  cause  to  the  state  court  Washburn,   66   Fed.   790;    affirmed 

is   said   to   be   permissible,   where  in  Washburn  v.   Pullman    Palace- 

the  order  of  remand  is  made  be-  Car  Co.,  21  C.  C.  A.  598,  76  Fed. 

fore  the  end   of  the  term  of  the  1005;    Mansfield,   C.   L.   M.  R.   Co. 

Supreme  Court. — A  y  e  r  s  v.  Wis-  v.  Swan,  111  U.  S.  379,  28   L.  Ed. 

wall,  112  U.  S.  187,  26  L.  Ed.  693,  462,  4  Sup.  Ct.  Rep.  510. 
5  Sup.  Ct.  Rep.  90.  3  Western     Union    Tel.     Co.     v. 

10  Lazensky  v.  Supreme  Lodge  Louisville  &  N.  R.  Co.,  208  Fed. 
Knights  of  Honor,  32  Fed.  417.  581;    Walsh's   Admr.    v.   Joplin    & 

11  See  Richmond  &  D.  R.  Co.  v.  P.  R.  Co.,  219  Fed.  345. 
Findley,  32  Fed.  641.  4  Walker   v.    Collins,    167    U.    S. 

12  Mansfield,  C.  &  L.  M.  R.  Co.  57,  42  L.  Ed.  76,  17  Sup.  Ct.  Rep. 
V.  Swan,  111  U.  S.  379,  28  L.  Ed.  738,  reversing  8  C.  C.  A.  1,  59  Fed. 
462,  4   Sup.  Ct.  Rep.  510.  70. 

G27 


§482  CODE    PLEADING   AND    PRACTICE.  [I*t.  J, 

eral  district  court  to  the  Supreme  Court  of  the  United 
States,  where  the  cause  is  reversed  and  remanded  to  the 
district  court,  with  directions  to  that  court  to  remand  to 
the  state  court,  the  party  procurini>'  the  removal  nuist  pay 
all  the  costs  in  the  federal  district  court  and  also  in  the 
Supreme  Court  of  the  United  States,^  except  in  those 
cases  in  which  both  parties  are  equally  at  fault,  when  the 
costs  may  be  equally  divided,^  or  allowed  to  neither 
partyJ 

5  Hancock  v.  Holbrook,  112  U.  S.      469,  30  L.  Ed.  435,  7  Sup.  Ct.  Rep. 
229,  28  L.  Ed.  714,  5  Sup.  Ct.  Rep.      287. 

115,  reversing  4  Woods  52,  9  Fed.  7  Parkersburg   First   Nat.    Bank 

353.  V.   Prager,   63  U.   S.  App.   703,   34 

6  Peper   v.   Fordyce,    119    U.    S.      C.  C.  A.  51,  91  Fed.  689. 


628 


PART  II. 

ACTIONS. 
CHAPTER  I. 

GROUNDS  OF  ACTION  AND  CONDITIONS  PRECEDENT. 

§  483.    In  general. 

§  484.    Action  distinguished  from  the  pleading  in  an  action, 

§  485.    Action  commenced  when. 

§  486.    Action  deemed  ended  when. 

§  487.    Condition  precedent  to  action — In  general. 

§  488.    Arbitration. 

§  489.    Conciliation. 

§  490.    Demand  and  refusal — In  general. 

§  491. Sufficiency  of  demand  and  objection. 

§  492. When  demand  not  necessary. 

§493.    Notice. 

§494.    Tender. 

§  495. Sufficiency  of  averments  of. 

§  496.    Acts    and    omissions    constituting    cause    of    action — In 
general. 

§  497.    Act  of  God. 

§  498.    Acts  done  with  consent — ^Volenti  non  fit  injuria. 

§  499. When  principle  does  not  apply. 

§  500.    Breach  of  contract. 

§  501.    Breach  of  trust. 

§  502.    Conspiracy  not  executed. 

§  503.    Criminality  of  act. 

§  504.    Damages  incident  to  public  improvement  or  work 

§  505.    Declaration  of  right  without  other  relief — In  general. 

§  506. Exceptions  to  the  rule. 

§507. English  practice. 

§  508.    Destruction  of  property  to  prevent  the  spread  of  fire. 

§  509.    Exercise  of  lawful  rights  in  use  of  property. 

§  510.    Exercise  of  riglits  with  bad  intent. 

§  511.    Fraud  without  injury. 

629 


§§  483,  484  CODE  pleading  and  practice.  [Pt.  II, 

§  512.  Illegal  or  immoral  contracts. 

§  513.  Inducing  breach  of  contract. 

§  514. California  doctrine. 

§  515.  Procuring  payment  to  self  of  money  known  to  belong 

to  another, 

§  516.  Public  injury. 

§  517.  Perjury  and  subornation  of  perjury. 

§  518.  Right  of  action  as  dependent  upon  relative  values. 

§  519.  Trivial  injuries  not  invading  fundamental  right. 

§  520.  Frivolous  and  collusive  actions. 

§  521.  Unnecessary  and  vexatious  actions. 

§  483.  In  GENERAi,.  "We  have  already  defined  an 
*' action"^  and  a  ''cause  of  action, "^  stating  the  elements 
of  the  latter,  and  have  drawn  the  distinction  between  an 
action  and  a  cause  of  action.  We  have  also  indicated  the 
general  classes  and  sub-classes  into  which  all  actions  are 
divided,^  under  the  reformed  procedural  codes,  with  a 
brief  reference  to  that  general  class  of  injuries  or  wrongs 
for  which  no  action  lies,  because  they  are  regarded  as 
damnum  absque  injuria."*  It  remains  in  this  place  to 
discuss  briefly  the  commencement  and  pendency  of 
actions;  the  conditions  precedent  to  the  commencement 
of  actions ;  the  acts  and  omissions  for  which  actions  may 
be  brought  and  maintained;  persons  entitled  to  sue  and 
persons  liable;  frivolous,  collusive  and  unnecessary 
actions,  and  the  like.  In  the  chapters  immediately  fol- 
lowing we  will  discuss :  (1)  The  character  of  and  nature 
and  forms  of  actions ;°  (2)  the  theory  of  the  case,  its 
necessity  and  effect;^  and  (3)  the  election  of  remedies, 
giving  applications  in  various  particular  instances.'^ 

§  484.  Action  distinguished  from  the  pleading  in  an 
ACTION.  It  is  to  be  remembered  that  there  is  a  marked 
distinction  between  an  action  and  the  pleading  in  an 

1  See,  ante,  §  3.  6  See,  post,  §§  522-527. 

2  See,  ante.  §  5.  "  6  See,   post,   §§  528-534. 

3  See,  ante,   §  4.  7  See,  post,   §§  535-574. 


4  See,  ante,  §  6. 


630 


(h.  I.]  ACTION  AND  PLEADING  DISTINGUISHED.  §  484 

action,  which  consists  in  the  fact  that  the  pleadings  show 
the  nature  of  the  demand,  and  the  defense ;  or,  in  common 
terms,  the  pleadings  are  the  complaint  and  answer,^  the 
formal  declarations  of  the  parties  to  the  action,^  which 
are  fully  discussed  later  on  in  this  treatise;^  while  the 
action  is  the  history  of  the  whole  cause,  including :  1.  The 
complaint,  which  names  the  parties,  and  states  the  injury 
suffered ;  2.  The  process,  which  brings  the  party  into  court 
to  answer  as  to  those  injuries;  3.  The  answer  of  defen- 
dant, which  admits,  or  denies,  or  avoids,  etc. ;  4.  The  trial, 
wherein  the  nature  of  the  demand  and  defense  are  pre- 
sented by  legal  proofs;  5.  The  judgment,  wherein  the 
court  allows  or  refuses  the  remedy  asked;  6.  The  execu- 
tion, by  which  the  legal  rights  of  the  parties  are  ol^tained. 
It  is  provided  by  the  Code  that ' '  the  pleading  on  the  part 
of  the  plaintiff  shall  be  the  complaint,  and  demurrer  to 
defendant's  answer;  and  on  the  part  of  the  defendant, 
demurrer  to  the  complaint,  and  answer. '  '^  Since  the  stat- 
utes of  our  state  have  in  express  terms  defined  what  tlie 
pleadings  are,  it  requires  no  reference  to  the  text-books 
on  the  subject  for  further  definition.  It  is  also  provided 
by  statute  that ' '  when  a  defendant  seeks  affirmative  relief 
against  any  party,  relative  to  or  depending  upon  the  con- 
tract or  transaction  upon  which  the  action  is  brought,  or 
affecting  the  property  to  which  the  action  relates,  he  may, 
in  addition  to  his  answer,  file  at  the  same  time,  or  by 
permission  of  the  court  subsequently,  a  cross-complaint, 
which  must  be  served  upon  the  parties  affected  thereby  if 
they  have  appeared,  and  if  they  have  not  appeared  in  the 
action  a  summons  upon  the  cross-complaint  must  l)o 
issued  and  served  upon  them";-''  so  that  ])arti('s  liti'^aiit 
may  settle  all  questions  of  difference  betwe(>n  tlicr.u  so 

1  Burr.   L.  Diet.   38.  Proc.   2d   ed..   §422;    Cciionlida.ea 

2  Kerr's    Cyc.    Cal.    Code    Civ.      Supp.   1906-1913,  p.   1441. 

Proc,    §  420.  ,-.  Kerr  s    Cyc.    Cal.    Code    C  i  v. 

:^  See,  post,  part  IV.  Proc,  2d  ed..  §  442;  Biennial  Supp. 

4  Kerr's    Cyc.    Cal.    Code    Civ.      191.'),  p.  3086. 

631 


§  485  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

far  as  is  practicable,  in  one  action,  and  not  litigate  by 
piecemeal.  Interminable  litigation  is  not  favored  either 
by  our  legislatures  or  by  our  courts,  the  decisions  being 
numerous  and  pointed  on  this  subject.  It  will  be  our  pur- 
pose, therefore,  to  consider  the  subject  of  actions  herein: 
reserving  the  consideration  of  the  pleadings  for  future 
chapters,  where  the  various  steps  will  be  considered  under 
their  appropriate  heads. 

§  485.  Action  commenced  when.  The  commencement, 
prosecution  and  termination  of  actions  is  treated  in  a 
later  chapter,  but  it  is  pertinent  to  remark  in  this  place 
that  in  California  an  action  is  commenced  by  filing  a  com- 
plaint with  the  clerk  of  the  court. ^  The  clerk  of  the  court 
endorses  on  the  complaint  thus  filed  the  day,  month  and 
year  that  it  is  filed,  and  at  any  time  within  one  year  there- 
after the  plaintiff  may  have  a  summons  issued,-  which 
may  be  served  at  any  time  mthin  three  years,  in  any  one 
of  the  methods  required  by  the  code.^  This  is  an  anom- 
alous method  of  commencing  an  action,  and  one  not  to  be 
commended.  It  must  be  conceded  that  this  provision  of 
the  California  code — which  professes  to  abolish  all  fic- 
tions— involves  a  fiction,  and  the  rule  is  an  arbitrary  one. 
There  is  in  truth  and  in  fact  no  cause  of  action  actually 
pending  until  service  of  process  has  been  effected,  al- 
though the  time  of  the  commencement  of  the  action  may 
be  made  to  relate  back  to  the  date  of  filing  the  complaint 
and  issuing  the  summons,  where  these  are  synchronous 
acts,  to  prevent  the  running  of  the  statute  of  limitations 
against  the  cause  of  action.  In  all  other  jurisdictions 
ha\'ing  the  reformed  system  of  judicature  the  issuance 
and  service  of  a  summons  is  essential  to  the  commence- 
ment of  an  action.  In  some  of  the  states,  as  in  New  York, 
an  action  is  commenced  by  the  service  of  the  summons 
simply,  the  complaint  being  served  later  and  within  rule. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  2  Id.,    §  406. 

Proc,  §  405.  3  See,  ante,  §§  181-206. 

632 


<ll.  I.]  CONDITION  PRECEDENT  TO  ACTION.  §§  486,  487 

In  all  those  jurisdictions  in  which  the  issuance  of  a  sum- 
mons is  made  a  condition  precedent,  equally  with  the  filing 
of  a  complaint,  to  the  commencement  of  an  action,  no 
action  can  be  commenced  without  the  issuance  of  a  sum- 
mons, regardless  of  the  fact  whether  it  can  be  served  by 
publication,^  only,  or  not ;  and  an  affidavit  for  publication, 
followed  by  an  actual  publication,  without  the  issuing  of 
a  summons,  does  not  constitute  the  commencement  of  an 
action.^ 

§  486.  Action  deemed  pending  when.  By  the  pro\T^- 
sions  of  the  California  code,  an  action  is  deemed  to  be 
pending  from  the  time  of  its  commencement  until  its  final 
determination  upon  appeal,  or  until  the  time  for  appeal 
has  passed,  unless  the  judgment  is  sooner  satisfied.^  This 
is  but  an  adoption  of  the  rule  that  prevailed  at  the  com- 
mon law  from  before  the  day  of  Lord  Coke.^ 

§  487.  Condition  precedent  to  action — In  general. 
It  is  a  general  principle  of  law  that  the  cause  of  action 
must  be  fully  matured  before  the  action  is  brought  ;^  the 
subsequent  occurrence  of  a  material  fact  necessary  to 
entitle  the  party  to  maintain  a  suit  ^^dll  not  avail  him  in 
maintaining  an  action  commenced  before  that  fact  trans- 
pired.- Thus,  where  a  corporation  is  required  by  statute 
to  file  its  certificate  of  incorporation  with  the  secretary  of 
state,  and  pay  the  fee  therefor,  before  it  can  become  either 
a  corporation  de  jure  or  de  facto,  until  the  certificate  is 
filed  and  the  fee  paid  it  can  not  maintain  an  action ;"'  and 

4  As    to    service    of    process    by  -■  Maryland  Tube  &  Iron  Works 

publication,    see,    ante,    §§  193    et  v.  West  End  Imp.  Co.,  87  Md.  207, 

seq.  39   L.   R.  A.  810,  39  Atl.  620. 

■'  See  Central   Sav.  Bank  Co.  v.  3  Jones  v.  Aspen  Hardware  Co.. 

Lagenbach,  1  Ohio  Nisi  Prius  124.  21  Colo.  263,  52  Am.  St.  Rep.  220, 

1  Kerr's    Cyc.    Cal.    Code    Civ.  29   L.   R.   A.   143,  40  Pac.   4;i7. 
Proc,  §1049.  In  absence  of  special   inhibition 

2  See  Co.  Litt.  2S9a.  in   statute,   failure  of  corpoi  ation. 

1  As  to  the  various  conditions  making  an  honest  effort  to  organ- 
precedent  to  the  commencement  ize  under  the  statute  authorizing 
of  an  action,  see,  post,  §§  488-495.  incorporation,  to  comply  with  the 

633 


§487  CODE   PLEADING   AND   PRACTICE.  [Pt.  If, 

where  under  a  statute  imposing  a  bonus-tax  a  corporation 
has  no  power  to  do  business  until  such  tax  is  paid,  until 
after  such  tax  is  paid  a  corporation  may  not  maintain 
an  action  at  law  or  a  suit  in  equity  to  enforce  a  right,  pro- 
tect an  interest,  or  redress  a  wrong  or  tort;  e.  g.,  can  not 
maintain  an  action  for  a  libel  published  prior  to  the  pay- 
ment of  such  bonus-tax."*  The  same  is  true  in  regard  to 
any  other  statutory  requirement  as  a  condition  precedent 
to  doing  business;  e.  g.,  filing  an  affidavit  showing  the 
names  of  the  persons  represented  by  a  firm-name  before 
any  suit  for  the  collection  of  a  firm  debt  can  be  maintained 
by  the  trustee, — but  the  failure  to  file  such  an  affidavit  will 
not  operate  to  abate  a  suit  brought  by  the  trustee  for  a 
tort.^  An  agreement  to  do  or  not  to  do  a  specified  thing,  in 
consideration  of  a  future  event,  the  transpiring  of  such 
future  event  is  usually  a  condition  precedent  to  main- 
taining an  action  on  the  agreement  f  but  the  future  event 
must  inhere  in  and  be  a  part  of  the  transaction,  or  be 
especially  agreed  upon  at  the  time  and  as  a  part  of  the 
pro\isions  of  the  contract,  before  it  becomes  a  condition 
precedent  to  the  maintaining  of  an  action.  Thus,  the  fact 
that  a  promissory  note  was  not  returned  for  taxation  by 
the  holder  thereof  can  not  be  set  up  in  abatement  of  a 
suit  thereon;'^  and  where  a  person  owing  to  another  a 
debt  leases  a  mining  claim  for  three  months  with  the  priv- 

reqiiirements  to  file  its  certificate  App.    49;     Edwards    v.    Cleveland 

of  organization  with  the  Secretary'  Dyer  Co.,  83  111.  App.  643;  Vanne- 

of    State   or   with   the    county   re-  man  v.  Young,  52  N.  J.  L.  403,  20 

corder  in  the  county  of  its  prin-  Atl.  53;   McCarter  v.  Ketcham,  72 

cipal    place    of    business,    as  N.  J.  L.  247,  62  Atl.  693;  Farmers 

lequired  by  the  statute,  does  not  Loan  &  Trust  Co.  v.  Toledo,  A.  A. 

preclude  the  corporation  from  hav-  &  N.  M.  R.  Co.,  67  Fed.  49. 
ing   a   de   facto   existence.  —  See:  4  National    Shutter    Bar    Co.    v. 

Owensboro  Wagon  Co.  v.  Bliss,  132  Zimmerman,    110   Md.    317,   7   Atl. 

Ala.   253,  90  Am.  St.    Rep.  907,   31  19. 

So.   81;    Bushnell    v.   Consolidated  5  Pedroni   v.   Eppstein,   17  Colo. 

Ice    Machine    Co.,    138    111.'   67,    27  App.  4.24,  68  Pac.  794. 
X.  E.  596;   Marshall  v.  Keach,  227  6  Bensley  v.  Atwill,  12  Cal.  240. 

111.   35,   118   Am.   St.    Rep.   247,    81  7  Brewster  v.  Light,  63  Kan.  882, 

N.  E.  29;  Curtis  v.  Meeker,  62  111.  65  Pac.  248. 

634 


I 


ch.  I.]  CONDITION  PRECEDENT — ARBITRATION.  §  488 

iloge  of  six  months,  the  royalties  accruing  from  the  work- 
ing of  the  mine  to  be  credited  on  the  debt,  the  working  of 
the  mine  for  six  months  is  not  a  condition  precedent  to 
maintaining  an  action  for  any  amount  of  the  indebtedness 
remaining  undischarged.^  Likewise,  in  a  case  in  which 
the  amount  of  the  indebtedness  is  in  dispute,  the  plaintiff 
claiming  that  the  full  amount  has  been  paid  and  that  there 
is  a  balance  due  to  him,  asking  for  a  surrender  of  the 
security  and  an  accounting,  an  offer  to  pay  any  balance 
due  is  not  a  condition  precedent  to  maintaining  the 
action.^  And  in  those  cases  in  which  a  contract  fixes  the 
time  for  the  payment  of  the  price  or  consideration  agreed 
upon,  without  fixing  the  time  for  doing  the  thing  which 
is  the  consideration  for  the  payment  to  be  made,  the  per- 
formance of  such  thing  or  act  is  not  a  condition  precedent 
to  maintaining  an  action  for  the  amount  agreed  to  be 
paid.^"  In  other  words,  the  performance  of  a  stipulation 
will  not  be  considered  a  condition  precedent  to  an  action 
unless  clearly  so  intended  by  the  parties  at  the  time  of 
entering:  into  the  contract.^ ^ 


^t) 


§488.  Arbitration.  It  is  a  well-established  prin- 
ciple of  jurisprudence  that  a  lawful  and  possible  condi- 
tion precedent  to  a  right  of  action  dependent  upon  it  must 
be  strictly  performed,^  however  unreasonable  it  may 
appear  ;2  hence,  whenever  any  one,  by  contract,  charges 

8  Boston  Newmarket  Gold   Min.  Allen,    112   Cal.   455,   461,   44   Pac. 

Co.    V.   Orme,    18    Colo.    App.    359,  796. 
71  Pac.  885.  First  act  of  performance  on  de- 

0  De  Leonis  v.  Walsh.   140   Cal.  fondant,  tender  of  performance  by 


175,  73  Pac.  813. 

10  Donovan    v.    Judson,    81    Cal. 


plaintiff    unnecessary.  —  Blunt 
Egeland,  104  Minn.  351,  116  N.  W. 
652. 


334.  6  L.  R.  A.  591.  22  Pac.  682.  „  Southern  Pac.  R.  Co.  v.  Allen. 

Agreement  to   convey   upon   re-  112  Cal.  455,  461.  44  Pac.  796;  Bank 

ceiving    government    patent,    the  of  Woodland   v.   Duncan,   117  Cal. 

l)urchase  money  becoming  due  on  412,  415,  49  Pac.  414. 

a  fixed  date,  action  therefor  may  i  See.  ante,  §  487. 

be  maintained  without  tendering  a  -  Baltimore  &  O.  R.  Co.  v.  Polly, 

deed.— Southern    Pac.    R.    Co.    v.  14  Gratt.  (Va.)  447. 

635 


§488 


CODE   PLEADING   AND   PRACTICE, 


[Ft.  IL 


himself  with  an  obligation  possible  to  be  performed,  he 
must  so  perform  before  a  right  to  maintain  an  action 
arises,  unless  his  performance  is  rendered  impossible  by 
act  of  God^  or  of  the  other  party.^  Contracts  entered  into 
containing  a  clause  providing  for  an  arbitration  by  a 
third  person  or  persons  as  a  condition  precedent  to  an 
action  thereon,  where  properly  restricted,  are  within  the 
clear  right  of  the  party  and  the  law  and  are,  according 
to  the  weight  of  decision,  binding  upon  him;  and  such 
arbitration  becomes  a  condition  precedent  to  maintaining 
an  action  on  the  contract."^   But  this  condition,  like  any 


3  As  to  act  of  God,  see,  post, 
§497. 

■i  United  States  v.  Gleason,  175 
U.  S.  588,  44  L.  Ed.  284,  20  Sup. 
Ct.  Rep.  228,  reversing  33  Ct.  of 
CI.  65.  See  Levy  v.  Order  of  Iron 
Hall,  67  N.  H.   593,   38  Atl.  18. 

5  C  A  L. — Holmes  v.  Richet,  56 
Cal.  307,  38  Am.  Rep.  54;  Loup  v. 
California  So.  R.  Co.,  63  Cal  97; 
Old  Saucelito  Land  &  Dry  Dock 
Co.  v.  Commercial  Union  Assur. 
Co.,  66  Cal.  253,  5  Pac.  232;  Gray 
V.  La  Societe  Francaise  de  Bien- 
faisance  Mutuelle,  131  Cal.  566, 
63  Pac.  848;  Roche  v.  Baldwin, 
135  Cal.  522,  65  Pac.  459,  67  Pac. 
903  (agreement  fee  to  be  fixed  by 
another,  quantum  meruit  will  not 
lie  without  showing  contract 
repudiated,  or  refusal  to  fix  fees) ; 
Davisson  v.  East  Whittier  Land  & 
Water  Co.,  153  Cal.  81,  96  Pac.  83; 
Burke  v.  Dittus,  8  Cal.  App.  175, 
96  Pac.  330.  COLO.— D  e  n  v  e  r, 
S.  P.  &  P.  R.  Co.  V.  Riley,  7  Colo. 
494,'  4  Pac.  785;  Denver  &  N.  O. 
Constr.  Co.  v.  Stout,  8  Colo.  61, 
5  Pac.  627.  FLA.— Southei-n  Home 
Ins.  Co.  V.  Faulkner,  57  Fla.  194, 
131  Am.  St.  Rep.  1098,  49  So.  542. 
IND.— Munk   v.   Kanzler,   26   I  n  d. 


App.  105,  58  N.  E.  543;  Maitland 
v.  Reed,  37  Ind.  App.  469,  77  N.  E. 
290.  IOWA— Eighmy  v.  Brother- 
hood of  Railway  Trainmen,  113 
Iowa  681,  83  N.  W.  1051.  KY.— 
Gaither  v.  Daugherty,  18  Ky.  L. 
Rep.  709,  38  S.  W.  2.  ME.— Fisher 
V.  Merchants'  Ins.  Co.,  95  Me.  486, 
85  Am.  St.  Rep.  428,  50  Atl.  282. 
MINN. — Gasser  v.  Sun  Fire  Ins. 
Co.,  42  Minn.  315,  44  N.  W.  252. 
MO. — Williams  v.  Chicago,  S.  F. 
&  C.  R.  Co.,  112  Mo.  463,  34  Am. 
St.  Rep.  403,  20  S.  W.  631.  MONT. 
— Randall  v.  American  Fire  Ins. 
Co.,  10  Mont.  340,  24  Am.  St.  Rep. 
50,  25  Pac.  953.  N.  H.— Smith  v. 
Boston,  C.  &  M.  R.  Co.,  36  N.  H. 
458.  N.  Y.— Delaware  &  H.  Canal 
Co.  V.  Pennsylvania  Coal  Co.,  50 
N.  Y.  250;  Altman  v.  Altman,  5 
Daly  (N.  Y.)  436.  ORE.— Ball  v. 
Doud,  26  Ore.  14,  20,  37  Pac.  70. 
PA.— Irwin  v.  Shultz,  46  Pa.  St. 
74;  Commercial  Union  Assur.  Co. 
V.  Hocking,  115  Pa.  St.  407,  2  Am. 
St.  Rep.  562,  8  Atl.  589.  TENN.— 
Cole  Mfg.  Co.  V.  Collier.  91  Tenn. 
525,  30  Am.  St.  Rep.  898.  19  S.  W. 
672.  W.  VA. — Lawson  v.  William- 
son Coal  &  Coke  Co.,  61  W.  Va. 
682,  57  S.  E.  258.  ENG. — Roper  v. 
London,  1  El.  &  El.  825,  102  Eng. 


636 


i-h.  I.]  CONDITION  PRECEDENT — ARBITRATION.  §  488 

other  condition  in  a  contract,  may  be  waived  f  and  it  has 
been  said  that  where  the  arbitration  clause  does  not  pro- 
vide for  a  submission  of  matters  in  dispute  or  in  question 
to  any  particular  person  or  tribunal  named,  but  provides 
for  a  submission  to  one  or  more  persons  to  be  mutually 
chosen  by  the  parties,  the  arbitration  clause  is  revocable 
by  either  of  the  parties  to  the  contract,  and  does  not  oust 
courts  having-  jurisdiction  of  the  subject-matter  of  the 
dispute;  and,  also,  that  the  application  of  this  principle 
is  not  disturbed  by  the  arbitration  provision  in  the  orig- 
inal contract  providing  that  no  action  shall  be  brought  or 
maintained  until  after  the  award  of  the  arbitrators  is 
filed;  or  by  the  fact  that  arbitrators  were  selected  who 
failed  to  agree. "^  The  authorities  are  not  harmonious  upon 
the  question  of  the  binding  character  of  an  agreement  to 
arbitrate  differences  arising  under  the  terms  of  a  contract 
and  the  carrying  out  of  sucli  contract,  and  such  arbitra- 
tion being  made  a  condition  precedent  to  an  action  on  the 
contract,  there  being  a  respectable  line  of  cases  holding 
that  an  unexecuted  agreement  to  arbitrate  does  not  de- 
prive the  courts  of  jurisdiction  of  the  controversy,  and 
can  not  be  pleaded  in  abatement  of  an  action  commenced 
without  a  prior  arbitration,  as  stipulated  for  in  the  con- 
tract.^ 

C.    L.    825,    120    Eng.    Repr.    1120;  v.  Hocking,  115  Pa.  St.  407,  2  Am. 

London    Tramway    Co.    v.    Bailey,  St.  Rep.  562,  8  Atl.  589. 
U  R.   3   Q.   B.  Div.   217;    Scott  v.  »  See,  among  other  cases,  Proder 

Avery,  5  H.  L.  Cas.  811.  "^-    National    Masonic   Accident 

.    .  .'       ..  ..^.  Assoc,  95  Iowa  149,  63  N.  W.  601; 

Arbitration  as  a  condition  prece-      „,.„.  „        .        ,.,      ^       .^\ 

Williams  V.  Banning  Mfg.  Co.,  154 
dent  to  maintaining  an  action,      ^    ^  ^.  L.  R.  A.  (N.  S.)  337. 

see  notes,  56  Am  Dec.  384;  2  Am.  ,,  g  ^90;  Pepin  v.  Societe  St. 
f  ',     p-  !    ;.f  it:-  f  r'.Vc'i       J--  ^'-^Ptiste,  23  R.  I.  84,  91  Am. 

nr^-    o.:    t  '  I     ^;..'^'.'^'!^-  V.      St.   Rep.  620,  49  Atl.  387;    Florida 
1055;   28  L.  R.  A.  (N.  S.)   104;   37       ,„,  ,      ^,   ,        „  '  , 

L.  R.  A.   (N.  S.)   337-448  Tt^'''^'-  ^'^  ^^^w  ?.' 

18  Tex.  Civ.  App.  170,  44  S.  W.  10; 

«  Dore  V.  Southern  Pac.  R.  Co.,      Kinney  v.  Baltimore  &  O.  R.  Co.. 
163  Cal.   182,   124  Pac.  817.  05  ^y    y^    335^  15  l.  r.  a.  142,  14 

7  Commercial   Union  Assur.   Co.      S.  E.  8. 

G37 


§489 


CODE   PLEADING    AND    PRACTICE. 


[Pt.H, 


§489. 


Conciliation.    Under  the  Mexican  law  pro- 


vailing  in  California  at  the  time  when  the  territory  came 
into  the  possession  of  the  United  States  by  the  treaty  of 
Guadalupe  Hidalgo,  February  2,  1848/  there  was  a  re- 
quirement for  a  conciliation  before  suit,- — something  sim- 
ilar to  what  we  now  have  in  Conciliation  Boards,  whose 
functions  are  to  settle  and  adjust  differences  and  disputes 
between  employers  and  employees,^ — which  is  a  species  of 
arbitration,  and  where  conciliation  was  requisite  to  confer 
jurisdiction'*  upon  the  ordinary  judge,  it  could  not  be 
waived,  overlooked,  or  disregarded,  even  after  appeal.^ 
Conciliation  is  now  obsolete  in  California  and  the  other 
American  states,  unless  it  still  obtains  in  Louisiana.'' 

Mexicmi  Code,  Article  313,  provides  for  a  conciliation 
in  case  of  an  accident  on  a  railroad  resulting  in  death  of 
an  employee,  but  this  provision  relates  wholly  to  proce- 
dure, and  in  a  suit  brought  in  the  United  States,  to  recover 


1  See  Henning's  Gen.  Laws,  2d 
ed.,  p.   14. 

-Court  of  Conciliation  is  a 
tribunal  deciding  differences  and 
disputes  between  parties  by  in- 
ducing them  to  settle  and  compro- 
mise their  differences  on  a  basis 
proposed  by  the  court.  Technic- 
ally it  implies  a  power  to  compel 
a  person  to  appear  at  the  request 
of  his  adversary  in  the  dispute, 
for  the  purpose  of  enabling  the 
court  to  compose  their  differences 
or  difficulties  in  a  manner  to  which 
both  will  assent.  If  the  court  is 
unable  to  find  a  basis  on  which 
the  differences  can  be  composed, 
and  the  parties  refuse  to  compro- 
mise, the  court  hands  the  parties 
over  to  a  regular  law  court. 

3  Conciliation  Boards,  in  the 
United  States,  have  no'  power  to 
enforce  acquiescence  in  their  de- 
cisions,   or    to    hand    the    parties 


over  to  a  court  of  law.  In  England 
there  have  been  several  statutes 
upon  the  subject,  but  the  action 
of  the  disputants  in  accepting  the 
decision  or  suggestion  of  the  con- 
ciliation board  is  purely  voluntary. 
In  the  Canadian  act  there  is  a 
provision  preventing  a  strike  or 
a  lock-out  before  or  pending 
an  investigation  by  a  conciliation 
board,  but  no  inhibition  of  either 
after  such  investigation.  In  New 
Zealand,  however,  if  the  decision 
of  the  conciliation  board  is  not 
accepted  by  either  party  the  case 
goes  to  the  Arbitration  court,  the 
award  of  which  is  enforceable  in 
a  court  of  law. 

4  In  what  cases  necessary  con- 
sidered and  discussed  by  Bennett, 
J.,  in  Von  Schmidt  v.  Huntington, 
1  Cal.  55. 

5  Von  Schmidt  v.  Huntington,  1 
Cal.  55. 

6  Id. 


G38 


I 


eh.  I.]  CONDITION  PRECEDENT DEMAND.  §  idO 

for  such  death,  it  is  not  necessary  for  the  petition  to 
show,  as  a  condition  precedent  to  maintaining  such  action, 
that  the  judge  who  took  cognizance  of  the  suit  endeavored 
to  procure  an  agreement  of  the  parties  to  a  compromise 
of  the  controversy,  as  required  by  said  Article  313  of  the 
Mexican  Code,  before  proceeding  to  an  adjudication 
thereof ;  being  wholly  a  matter  of  procedure,  the  concilia- 
tion provision  does  not  affect  the  right  of  action  or  the 
remedy."^ 

§  490.    Demand  and  refusal, — Tisr  general,.     The 

object  of  a  demand  is  to  enable  a  party  (1)  to  perform 
his  contract  or  (2)  to  discharge  his  duty  without  the 
annoyance  and  expense  of  a  suit.^  A  demand  and  a 
refusal  is  a  condition  precedent  to  an  action,  and  must 
be  alleged  and  proved,  wherever  it  is  an  integral  part  of 
the  cause  of  action, — e.  g.,  duty  to  (1)  pay  money  or 
(2)  deliver  property  not  arising  until  a  demand.-  Thus, 
a  demand  and  a  refusal  is  necessary  to  an  action  on  a 
contract  payable  in  anything  except  money  ;^  or  a  con- 
tract to  deliver  articles  or  merchandise  on  demand;^  for 
money  in  the  hands  of  an  agent  ;^  for  the  return,  after 

7  Evey  V.  Mexican  Cent.  R.  Co.,  Contract-order  for  minimum  and 

81   Fed.   294,   26   C.   C.   A.   407,    52  maximum  quantity  of  material  or 

U.  S.  App.  118,  38  L.  R.  A.  387.  mercliandise    within    a    stipulated 

1  Mullally  V.  Townsend,  119  Cal.  time,  in  absence  of  absolute  re- 
51,  50  Pac.  1066;  McGuire  v.  Wil-  fusal,  suit  can  not  be  maintained 
liams,  123  N.  C.  349,  31  S.  E.  627.  on    the    contract    created    by    the 

2  Cox  V.  Delmas,  99  Cal.  120,  33  acceptance  of  the  order  until  the 
Pac.  S-36.  end  of  the  time  specified  for  the 

A  demand  as  a  condition  prece-  delivery  of  the  maximum  amount. 

dent  to  an  action  by  covenant  to  — See    Southern   Publishing  Assn. 

recover  for  use  and  occupation  or  v.    Clements    Paper    Co.    (Tenn.), 

rents    and    profits,    see   n  o  t  e,    29  L.  R.  A.  1918D,  580,  201  S.  W.  745. 

L.  R.  A.  (N.  S.)  232.  4  Snow  v.  Johnson,   1  Minn.  48. 

A   demand   for  payment  of  ali-  r,  Rushnell   v.   McCauley,   7   Cal. 

mony    as    condition    precedent    to  422. 

contempt  proceedings,  see  note,  24  Demand  as  a  condition  of  action 

L.  R.  A.  437.  to  recover   money  collected   by 

3  Parr  v.  Johnson,  37  Minn.  457,  agent.  See  note,  28  L.  R.  A.  (N.S.) 
35   N.  W.   176.  626. 

639 


§490  CODE   PLEADING   AND   PRACTICE.  [  Pt.  11, 

notification,  of  money  voluntarily  paid  by  the  state;*'  for 
the  return  of  money  voluntarily  paid  to  an  officer  in 
ignorance  of  rights;^  for  money  (1)  to  become  due  after 
demand^  or  (2)  the  obligation  providing  for  a  demand;'' 
where  payment  is  to  be  made  upon  the  happening  of  a  cer- 
tain event,  which  event  is  peculiarly  within  the  knowledge 
of  the  obligee  ;^*^or  where  sureties  agree  to  pay  a  collateral 
sum  upon  demand,^ ^  and  the  like.  A  demand  being  requi- 
site, it  must  be  made  within  the  time  provided  by  the 
statute  of  limitations  against  the  maintaining  of  actions.^- 

Actions  to  recover  specific  personal  property  are  of  the 
class  requiring  a  previous  demand  and  refusal  for  their 
maintaining,  where  the  property  is  (1)  wrongfully 
seized/^  or  (2)  where  it  appears  that  the  defendant  came 
rightfully  into  the  possession  thereof,^ ^ — e.  g.,  by  a  bona 
fide  purchase  ;^^  and  the  demand  for  the  surrender  or 
return  of  the  property  must  be  made  upon  the  person 
in  whose  possession  the  property  sought  to  be  recovered 
is  at  the  time  of  the  demand,  otherwise  an  action  can  not 
be  maintained  in  equity  against  such  person  for  its  re- 
covery. ^^ 

6  Southwick  V.  First  Nat.  Bank,  13  Woodworth    v.   Knowlton,    22 

84  N.  Y.  420,  61  How.  Pr.  164,  re-  Cal.  170. 

versing  20  Hun  349.  14  Campbell    T.    Jones,    38    Cal. 

T  Ford  V.  Brownell,  13  Minn.  184.  509. 

><  Cassidy  v.   Slemons,  41  Mont.  15  Onondaga  Nation  v.  Thacher, 

426,  109  Pac.  976.  29    Misc.    (N.    Y.)    428,    61    N.    Y. 

Demand    as    a    condition    prece-  Supp.  1027;  affirmed,  53  App.  Div. 

dent  to  an  action  to  recover  on  a  561,  65  N.  Y.  Supp.  1014,  169  N.  Y. 

promise    to    pay    on    demand    tlie  584,  596,  62  N.  E.  1098. 

debt   of   anotlier.      See   note,    34  ic  Wampum  keeper,  in  violation 

L.  R.  A.  (N.  S.)  154.  of    his    official    duty,    having    sold 

'■>  Mullally  V.  Townsend,  119  Cal.  wampum  belts,  which  were  after- 

51,  50  Pac.  1066.  wards  purchased  by  defendant  in 

10  Florsheim  v.  Palmer,  99  111.  good  faith,  a  demand  upon  defen- 
559.  dant  for  the  delivery  and  surrender 

11  Pierce  v.  Whiting,  63  Cal.  538,  of  the  wampum  belts  was  held  to 
541.  be    a    necessary    condition    prece- 

i2Landis  v.  Saxton,  105  Mo.  486,  r''ent  to  a  suit  in  equity  for  their 
24  Am.  St.  Rep.  403,  16  S.  W.  912.      recovery.— Onondaga  Nation  v. 

G40 


ch.  I.]  BUmCIENCY  OF  DEMAND — OBJECTION.  §  491 

"§.  491. Sufficiency  of  demand  and  objec- 
tion. A  demand  being  requisite  it  is  sufficient  wliere 
made  in  any  language  plainly  indicating  to  the  party 
tljat  lie  is  required  (1)  to  perform  a  duty,  or  (2)  to  dis- 
cbarge an  obligation,  to  wbicli  duty  or  obligation  the 
demand  refers.^  The  demand  need  not  be  in  writing,^ 
but  it  must  be  made  within  the  period  of  the  statute  of 
limitations  against  the  maintaining  of  actions.^  Appear- 
ance at  a  time  and  place  where  the  debtor  has  notified  his 
creditor  that  he  will  make  payment,  for  the  purpose  of 
receiving  the  money,  has  been  held  to  be  a  sufficient 
demand — or  equivalent  to  a  demand — by  the  creditor,'* 
Commencement  of  a  suit  has  also  been  said  to  be  a  suffi- 
cient demand  for  the  payment  of  money  payable  on 
demand,^  the  summons  constituting  all  the  demand  that 
is  necessary,^'  except  in  those  cases  in  which  a  specific 
demand  is  necessary  to  the  right  of  action.'^  Authority  of 
the  person  making  the  demand  to  do  so,  if  excepted  to, 
objection  must  be  made  at  the  time  of  the  demand.^  A  de- 
mand made  by  one  having  a  receipt  in  full,  from  the 
proper  authority,  in  discharge  of  a  liability,  is  as  much  a 
personal  demand  as  though  made  in  person  by  the  party 

Thacher,  29  Misc.   (N.  Y.)  428,  61  national    Lumber    Co.,    33    Wash. 

N.  Y.  Supp.  1027;  affirmed,  53  App.  181,  73  Pac.   1113. 

Div.  561,  65  N.  Y.  Supp.  1014,  169  Licet  saepuis  requisitus  is  a  suf- 

N.  Y.  584,  596,  62  N.  E.  1098.  ficient    demand    in    an    action 

1  Mullally  V.  Townsend,  119  Cal.  brought  (1)  for  the  recovery  of  a 

51,  50  Puc.  1066.  debt  or  (2)   the  performance  of  a 

2Meetz  V.  Mohr,  141  Cal.  672,  75  mere  duty. — Hobart  v.  Hilliard,  28 

Pac.  298.  Mass.   (11  Pick.)    143;   Fletcher  v. 

3  See,  ante,  §  490,  footnote  12.  Cummings,  33  Neb.  793,  51  N.  W. 

4  Schlimbach  v.  McLean,  178  I'*'*- 

N.  Y.  600,  70  N.  E.  1108,  affirming  ^  Reidebaugh  v.  Grove,  2  Ky.  L. 

83  App.  Div.  157,  13  N.  Y.  Ann.  Cas.  Rep.  223. 

1)0,  82  N.  Y.  Supp.  516.  ^  Pope  v.  Hays,  1  Mo.  450. 

•'">  Florsheira    v.    Palmer,    99    111.  See,  also,  ante,  §  490,   footnotes 

App.   559;    Reideaugh   v.  Grove,  2  2  et  seq. 

Ky.  L.  Rep.  223;  Hopkins  v.  Inter-  8  Baxter  v.  McKinlay,  16  Cal.  77. 

I  Code  PI.  and  Pr.— 41  (]4]^ 


§492 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  II, 


signing  the  receipt  f  and  a  demand  after  suit  brought  for 
the  replevying  of  personal  property,  made  upon  a  third 
person,  who  is  afterwards  brought  in  as  a  party  to  the 
action,  is  a  sufficient  demand  as  to  such  third  person. ^*^ 
Objection  to  a  demand  on  one  ground  waives  all  other 
grounds  of  objection  not  named  ;^^  an  objection  that  no 
demand  was  made  before  suit  was  commenced,  must  be 
set  up  by  w^ay  of  defense,  and  be  accompanied  by  a 
tender.^^ 


§492. 


When    demand    not    necessary.    "We 


have  already  seen  that  the  demand  is  for  the  benefit  of  the 
defendant;^  hence  where  the  defendant  denies  the  duty 
or  the  contract  or  obligation,-  or  where  it  is  apparent 
that  a  demand  would  have  been  disregarded  or  unavail- 
ing, a  demand  is  not  a  condition  precedent  to  the  com- 
mencement of  an  action.^  Where  a  defendant  is  brought 


9  Nash  V.  Union  Mut.  Ins.  Co., 
43  Me.  343,  69  Am.  Dec.  65. 

10  McCarthy  v.  Hetzner,  70  111. 
App.  480. 

11  Ward  V.  Flood,  48  Cal.  47,  17 
Am.  Rep.  405. 

12  Harrison  v.  Lakenan,  189  Mo. 
581,  88   S.  W.  53. 

1  See,  ante,  §  490,  footnote  1. 

2  McGuire  v.  Williams,  123  N.  C. 
349,  31  S.  E.  627. 

Agent  or  attorney  denying  lia- 
bility for  money  collected  for 
plaintiff,  demand  not  necessary. — 
Cox  V.  Delmas,  99  Cal.  120,  33  Pac. 
836. 

Denial  both  of  possession  and 
value  of  property,  but  admitting 
its  loss  or  escape,  demand  not 
necessary. — O  r  e  g  o  n  Imp.  Co.  v. 
Seattle  Gas  Light  Co.,  4  Wash. 
634,  30  Pac.  672. 

Denial  of  relation  on  which 
action  based,  no  demahd  neces- 
sary.— Parrott  v.  B  y  e  r  s,  40  Cal. 
622. 


3  O'Connor  v.  Dingley,  26  Cal. 
19;  Parrott  v.  Byers,  40  Cal.  622; 
Cox  V.  Delmas,  99  Cal.  120,  121,  33 
Pac.  836;  California  Cured  Fruit 
Assoc.  V.  Stelling,  141  Cal.  713,  719, 
75  Pac.  320;  Ward  v.  Montgomery, 
67  111.  App.  346;  Whit  comb  v. 
Stringer,  160  Ind.  82,  66  N.  E.  443, 
63  N.  E.  582,  64  N.  E.  636;  Daven- 
port V.  Ladd,  38  Minn.  545,  38 
N.  W.  622;  Glenn  v.  Kittanning 
Brewing  Co.,  259  Pa.  St.  510, 
L.  R.  A.  1918D,  738,  103  Atl.  340; 
Burrows  v.  McCalley,  17  Wash. 
269,  49  Pac.  508;  Kimball  v. 
Farmers'  &  Merchants'  Bank,  50 
Wash.  610,  97  Pac.  748. 

New  issue  of  stock  voted  by 
directors  of  corporation  and  ab- 
sorbed by  themselves  without 
affording  stockholders  generally  an 
opportunity  to  take  it  up  in  pro- 
portion to  their  holdings,  the  con- 
trol of  the  corporation  being  in- 
volved, stockholder  need  not 
demand  action  by  the  corporation 


642 


Ch.  I.]  DEMAND  NOT  NECESSARY  WHEN.  §  493 

into  court  by  his  adversary,  he  is  relieved  of  the  duty  to 
make  the  demand  which  would  be  required  of  him  if  he 
were  the  moving  party.^  There  are  many  other  instances 
in  which  a  demand  is  not  prerequisite  to  suit,  among  which 
are:  Demand  for  price  of  goods  is  not  necessary  in  an 
action  for  the  fraudulent  purcliase  of  such  goods  f  for 
money  belonging  to  an  estate,  receipt  w^hereof  was  wrong 
ab  initio  f  for  money  paid  under  a  contract  which  defen- 
dant has  elected  to  rescind  ;'^  for  the  payment  of  unliqui- 
dated damages  against  sureties  on  bond,  in  an  injunction 
suit,  stipulating  therefor;^  for  return  of  property  sold 
on  execution  under  a  judgment  afterwards  reversed, 
before  bringing  action  for  damages  for  the  property 
wrongfully  taken  f  for  return  of  property,  where  defen- 
dant sets  up  title  in  himself;^"  on  failure  to  carry  out 
agreement  to  assume  and  pay  debt  of  another  ;^^  where 
defendant  has  money  wdiich  he  ought  to  pay  plaintiff;^- 
where  money  is  due  under  a  contract^ ^  or  was  paid  under 
a  void  contract  ;^^  where  the  obligation  is  complete,^^  and 
the  like. 

§  493.  Notice.  A  notice  may  or  may  not  be  a  con- 
dition precedent  to  the  commencement  of  an  action,  de- 
pending upon  (1)  the  nature  of  the  cause  of  action  and 
(2)  statutoiT"  provisions.    In  an  action  for  a  tort, — e.  g., 

before  bringing  suit  to  set  aside  lo  Parrott  v.  Byers,  40  Cal.  622; 

the  issue  of  the  stock.— Glenn  v.  Davis  v.  Wenona  Wagon  Co.,  120 
Kittanning  Brewing   Co.,   259   Pa.      cal.  247,  52  Pac.  487. 


11  Andrews   v.   Frye,    104    Mass. 
234. 


St.   510,    L.   R.   A.   1918D,   738,   103 
Atl.  340. 

4  Harshman  v.  Mitchell,  117  Ind. 
312,  20  N.  E.  228,  isQuimby  v.  Lyon,  63  Cal.  395. 

5  Stewart  v.  Levy,  36  Cal.  159.  13  Bertha  v.  Sparks,  19  Ind.  App. 

6  Marshall    v.    De    Cordova,    26      431^  49  |^    g    331 


14  Glencoe,  Village  of,  v.  County 
Commissioners,  40  Minn.  44,  41 
N.  W.  239. 


App.   Div.    (N.   Y.)    615,    50    N.   Y. 
Supp.   294. 

7  Drew  V.  Pedlar,  87  Cal.  452,  22 
Am.  St.  Rep.  257,  25  Pac.  749. 

8  Brown  v.  Davis,  15  Cal.  9.  isLandix  v.  Sax  ton,  105  Mo. 
0  Zimmerman  v.  National  Bank,      486,  24  Am,  St.  Rep.  403,  16  S.  W. 

56  Iowa  133,  8  N,  W.   807.  912. 

643 


§494 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  II, 


injury  to  a  cellar-drain,  notice  of  such  injury  to  the 
person  causing  the  same  is  not  a  prerequisite  to  suit.^ 
Notice  of  a  certificate  previously  issued  is  not  a  condition 
precedent  to  an  action  under  a  contract  to  do  specified 
work  to  be  paid  for,  on  certificate  of  engineer,  as  work 
progressed.^  But  notice  that  money  was  voluntarily  paid 
by  the  state,  and  a  demand^  for  its  return,  are  conditions 
precedent  to  an  action  for  its  recovery,^  In  actions  for 
damages  for  personal  injuries,  in  the  absence  of  a  statu- 
tory requirement,  notice  of  the  accident  causing  the  injury 
and  of  the  injury  are  not  requisite  to  the  commencement 
of  an  action  for  damages  f  but  under  statute  such  notice 
may  be  a  condition  precedent  to  suit.^ 


§494. 


Tender.^     In    the    case    of    covenants    or 


undertakings  which  are  mutual  and  dependent,  where 
performance  has  not  taken  place  pursuant  to  the  contract, 
the  party  seeking  specific  performance,  or  redress  for 
breach  of  contract,  is  required,  as  a  condition  precedent 
to  commencing  an  action  at  law  or  suit  in  equity,  to  tender 
performance  on  his  part  to  the  other  party,- — and  the 


1  Ohio  &  M.  R.  Co.  V.  Hemberger, 
43  Ind.  462. 

2  Panderson  v.  Shepherd,  25 
Mass.  (8  Pick.)  379;  Hobart  v. 
Hilliard,  28  Mass.  (11  Pick.)  144. 

3  As  to  necessity  for  demand, 
see,  ante,  §  490. 

4  Southwick  V.  First  Nat.  Bank, 
84  N.  Y.  420,  61  How.  Pr.  164,  re- 
versing 20  Hun  349. 

5  Birmingham  R.  &  Electric  Co. 
V.  Wildman,  119  Ala.  547,  24  So. 
548. 

6  Gatzow  V.  Buening,  106  Wis. 
1,  49  L.  R.  A.  475,  81  N.  W.  1003; 
Malloy  V.  Chicago  &  N.  W.  R. 
Co.,  109  Wis.  29,  85  N.  W.  130; 
Smith  V.  Chicago,  M.  &  St.  P.  R. 
Co.,  124  Wis.  120,  102  N.  W.  336; 
Hoffmann   v.    Milwaukee    Electric 


R.  &  Light  Co.,  127  Wis.  76,  106 
N.  W.  808. 

1  Subject  of  tender,  in  its  various 
aspects  in  law  and  equity,  its 
necessity  to  perfect  a  cause  of 
action,  time  of  making,  form  and 
sufRciency  of,  keeping  tender  good 
and  paying  into  court,  and  tender 
as  a  defense,  and  the  like,  is  too 
broad  for  treatment  in  this  place. 
A  brief  discussion  of  tender  as  a 
condition  precedent  to  an  action  at 
law  or  a  suit  in  equity  is  all  that 
can  be  attempted  in  this  place. 

i;  Smith  v.  Sherman,  174  Ala. 
537,  56  So.  957;  Smith  v.  Henry, 
7  Ark.  207,  44  Am.  Dec.  540;  New- 
s  o  me  v.  Williams,  27  Ark.  635; 
Sanford  v.  Cloud,  17  Fla.  532; 
School  District  v.  Rogers,  8  Iowa 


644 


•h.  I.] 


CONDITION   PRECEDENT TENDER. 


§494 


siinie  principle  applies  in  a  suit  in  equity  to  restrain  col- 
lection of  illegal  taxes  assessed,  or  to  set  aside  a  sale  in 
payment  of  illegal  taxes,  in  requiring  a  tender  of  the 
ascertainable  legal  taxes  ;^  and  this  tender  must  be  duly 
pleaded  and  proved,*  although  it  has  been  said  in  a  few 
cases  that  an  offer  or  tender  of  performance  made  on  the 
trial  is  sufiScient,^  but  this  doctrine  is  denied  in  other 


318;  Hapgood  v.  Shaw,  105  Mass. 
276;  Stockton  v.  George,  8  Miss. 
(7  How.)  175;  Hudson  v.  Swift, 
20  Johns.  (N.  Y.)  24;  Parker  v. 
Parmele,  20  Johns.  (N.  Y.)  130, 
11  Am.  Dec.  253;  Williams  v. 
Healey,  3  Den.  (N.  Y.)  363;  Dun- 
ham V.  Pattee,  8  N.  Y.  508;  Fickett 
V.  Brice,  22  How.  Pr.  (N.  Y.)  194; 
Merwin  v.  Hamilton,  13  N.  Y.  Super. 
Ct.  Rep.  (6  Duer)  244;  Hogan  v. 
Burton,  16  N.  Y.  St.  Rep.  60; 
Webb  V.  Stevenson,  6  Ohio  282; 
Hansford  v.  Fisher,  Wright  (Ohio) 
580;  Sievers  v.  Brown,  36  Ore.  222, 
56  Pac.  171;  Davis  v.  Jeffries,  5 
S.  D.  352,  58  N.  W.  815;  Skeels 
V.  Blanchard,  85  Vt.  296,  81  Atl. 
016;  Roach  v.  Dickinson,  9  Gratt. 
(Va.)  154;  Kelsey  v.  Crowther,  162 
U.  S.  409,  49  L.  Ed.  1019,  16  Sup. 
Ct.  Rep.  810;  Pollock  v.  Riddick, 
88  C.  C.  A.  326,  161  Fed.  282. 

See,  also,  notes,  29  Am.  Dec. 
630;  44  Am.  Dec.  546;  37  Am.  St. 
Rep.  29;   118  Am.  St.  Rep.  915. 

'■''  People  ex  rel.  Iron  Silver  Min. 
Co.  V.  Henderson,  12  Colo.  369,  21 
Pac.  144;  Wason  v.  Major,  10 
Colo.  App.  181,  50  Pac.  741;  Mor- 
rison V.  Hershire,  32  Iowa  271; 
Gulf  R.  Co.  V.  Morris,  7  Kan.  210; 
Leavenworth  County  Commrs.  v. 
Lang,  8  Kan.  284 ;  Ottawa,  City  of, 
V.  Barney,  10  Kan.  270;  Lawrence, 
City  of,  V.  Rillam,  11  Kan.  499; 
Hageman  v.  Cloud  County 
Commrs.,   19   Kan.   394;    Smith   v. 


Woodleaf,  21  Kan.  717;  Wilson  v. 
Longendyke,  32  Kan.  267,  4  Pac. 
361;  Chicago,  B.  &  Q.  R.  Co.  v. 
Atchison  County  Board  of 
Commrs.,  54  Kan.  781,  39  Pac.  1039; 
Garnett  Bank  v.  Ferris,  55  Kan. 
120,  39  Pac.  1042;  Douglas  v. 
Fargo,  City  of,  13  N.  D.  467,  101 
N.  W.  919,  and  cases  cited;  State 
Nat.  Bank  v.  Carson  (Okla.),  50 
Pac.  990;  Lafferts  v.  Calumet 
County  Board  of  Commrs.,  21  Wis. 
688;  People  of  New  York  v. 
Weaver,  100  U.  S.  539,  25  L.  Ed. 
705;  Pelton  v.  National  Bank,  101 
U.  S.  143,  25  L.  Ed.  901;  Cum- 
mings  v.  National  Bank,  101  U.  S. 
153,  25  L.  Ed.  903;  Northern  Pac. 
R.  Co.  V.  Clark,  153  U.  S.  252,  38 
L.  Ed.  706,  14  Sup.  Ct.  Rep.  809. 

4  Smith  V.  Sherman,  174  Ala. 
537,  56  So.  957;  Hegler  v.  Eddy,  53 
Cal.  597;  Meredith  v.  Santa  Clara 
Min.  Assoc,  56  Cal.  178;  Barker 
v.  Brink,  5  Iowa  481;  Sidenberg  v. 
Ely,  90  N.  Y.  257,  43  Am.  Rep.  163, 
11  Abb.  Pr.  N.  S.  354;  Lester  v. 
Jewett,  12  Barb.  (N.  Y.)  502;  Mer- 
win V.  Hamilton,  13  N.  Y.  Super. 
Ct.  Rep.  (6  Duer)  244. 

5  Schoonmaker  v.  Kelly,  42  Hun 
(N.  Y.)  292;  Lewis  v,  Andrews, 
38  N.  Y.  St.  Rep.  808;  Hassam  v. 
Hassam,  22  Vt.  516  (tender  pleaded 
to  have  been  made  after  suit  but 
before  matter  pleaded  as  a  set-off, 
held  in  time). 

Ignorance  of  amount  due  may  ex- 


645 


§494 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  II, 


cases. ^  A  mere  averment  that  the  plaintiff  is  ready  and 
willing  to  perform  his  part  of  the  contract  or  undertaking 
does  not  meet  the  requirements  of  a  tender  and  a  plea 
thereof,  and  is  for  that  reason  insufficient,  according  to 
the  weight  of  authority ''^  and  the  better  rule,  for  the  object 
of  a  tender,  like  the  object  of  a  demand,  is  for  the  benefit 
of  the  defendant,  and  to  enable  him  to  perform  his  part 
of  the  contract  without  the  annoyance  and  expense  of  a 
suit.^  A  tender  must  accompany  an  objection,  by  way  of 
defense,  that  no  demand  was  made.®  Tender  of  a  recon- 
veyance of  property  received  under  a  writing  giving  to  a 
deed  the  effect  of  a  mortgage  and  allowing  a  reasonable 
time  in  which  to  sell  a  mine  and  pay  the  sum  thus  secured 
and  sued  for,  is  necessary  where  there  is  no  showing  that 
a  reasonable  time  has  elapsed.^"  Tender  or  offer  to  put 
the  complainant  in  statu  quo,  by  one  charged  with  having 
perpetrated  a  fraud,  where  not  availed  of  mthin  a  rea- 
sonable time,  prevents  a  court  of  equity  from  granting 


cuse  plaintiff  from  making  tender 
before  commencing  suit,  b  u  t  he 
must  make  a  tender  on  the  trial 
as  soon  as  that  amount  is  ascer- 
tained.— Hyndman  v.  Hogsett,  111 
Pa.  St.  643,  4  Atl.  717. 

0  Smith  V.  Woodleaf,  21  Kan. 
717;  Rennyson  v.  Reifsnyder,  11 
Pa.  Co.  Ct.  Rep.  157. 

7  Englander  v.  Rogers,  41  Cal. 
420;  Heine  v.  Treadwell,  72  Cal. 
217,  13  Pac.  503;  Bailey  v.  Lay,  18 
Colo.  405,  33  Pac.  407;  Vankeik  v. 
Talbot,  4  Blackf.  (Ind.)  367;  John- 
son V.  Applegate,  1  N.  J.  L..  (1 
Coxe)  271;  Harvey  v.  Trenchard, 
6  N.  J.  L.  (1  Halst.)  126;  Ackley 
V.  Richman,  10  N.  J.  L.  (5  Halst.) 
304;  Parker  v.  Parmerle,  20  Johns. 
(N.  Y.)  130,  11  Am.  Dec.  253;  John- 
son V.  Wygant,  11  Wend.  (N.  Y.) 
49:  Lester  v.  Jewett,  11  X.  Y.  453, 
reversing  12  Barb.  502;    Campbell 


V.  Gettings,  19  Ohio  317;  Powell 
V.  Dayton,  S.  &  G.  R.  Co.,  12  Ore. 
488,  8  Pac.  544;  Bank  of  Columbia 
V.  Hanger,  26  U.  S.  (1  Pet.)  455, 
7  L.  Ed.  219;  Dudley  v.  Hay  ward, 
11  Fed.  545. 

Compare:  Adams  v.  Clark,  63 
Mass.  (9  Cush.)  215,  57  Am.  Dec. 
41;  Thompson  v.  Dickerson,  68  Mo. 
App.  535;  Porter  v.  Rose,  12  Johns. 
(N.  Y.)  209,  7  Am.  Dec.  306;  Brook- 
lyn Ore  Refinery  v.  Brown,  38 
How.  Pr.  (N.  Y.)  444;  Henry  v. 
Raiman,  25  Pa.  St.  354,  64  Am. 
Dec.  703;  "Wagenblast  v.  McKean, 
2  Grant  Cas.  (Pa.)  393;  Neis  v, 
Yocum,  9  Sawy.  24,  16  Fed.  168; 
Rawson  v.  Johnson,  1  East  203, 
102  Eng.  Repr.  79. 

8  See,  ante,   §  490,   footnote  1. 

9  Walcott  v.  Madden,  10  O  r  e. 
370. 

ii>Id. 


646 


ch.  I.] 


TENDER — SUFFICIENCY  OF  AVERMENT  OP. 


§495 


relief.^*  As  in  the  case  of  a  demand, ^^  a  tender  of  per- 
formance is  not  necessary  in  those  cases  in  which  it  is 
apparent  that  it  would  have  been  rejected.^^  Objection  to 
a  tender  on  one  ground  is  a  waiver  of  all  other  grounds 
of  objection  not  named.^* 

§495. Sufficiency   of   averments   of.     An 

allegation  of  a  tender  in  general  terms  is  not  sufficient, 
either  at  law  or  in  equity  ;^  the  allegation  must  be  definite 
and  certain  as  to  the  time  of  tender^  and  as  to  the  amount 
tendered,^  setting  out  facts  sufficient  to  show  the  exist- 
ence of  a  valid  tender  under  the  terms  and  conditions 
of  the  particular  contract,*  both  as  to  the  time  of  the 
tender,^  and  as  to  the  amount  of  the  tender^  or  as  to  the 


11  Hooker  v.  Midland  Steel  Co., 
117  111.  App.  441;  affirmed,  215  111. 
444,  106  Am.  St.  Rep.  170,  74  N.  E. 
445. 

12  See,  ante,  §  492. 

13  St.  Louis  &  S.  F.  R.  Co.  v. 
Richards,  23  Okla.  256,  23  L.  R.  A. 
(N.  S.)   1032,  102  Pac.  92. 

14  Ward  V.  Flood,  48  Cal.  47,  17 
Am.  Rep.  405. 

1  McCalley  v.  Otey,  90  Ala.  302, 
8  So.  157;  McGehee  v.  Jones,  10 
Ga.  132;  Cothran  v.  Scanlan,  34 
Ga.  555;  Newby  v.  Rogers,  40  Ind. 
9. 

2  Duff  V.  Fisher,  15  Cal.  375, 376; 
Vance  v.  Blair,  18  Ohio  532,  51 
Am.  Dec.  465. 

3  See:  Bothwell  v.  Millikan,  104 
Ind.  162,  2  N.  E.  959,  3  N.  E.  816; 
Dawson  v.  Overmyer,  141  Ind.  438, 
40  N.  E.  1065;  Rains  v.  Scott,  13 
Ohio  107;  Hill  v.  Harriman,  95 
Tenn.  300,  32  S.  W.  202. 

4  McGehee  v.  Jones,  10  Ga.  132; 
Cothran  v.  Scanlan,  34  Ga.  555. 

^>  Tender  after  date  provided  for 
in  the  contract  is  an  insufficient 
tender.  —  McCulloch  v.  Davson,  1 


Ind.  413;  Newby  v.  Rogers,  40  Ind. 
9. 

6  A  less  amount  than  that  stipu- 
lated for  tendered,  it  is  insufficient. 
— Ross  V.  New  England  Mortgage 
Security  Co.,  101  Ala.  362,  13  So. 
564. 

A  tender  by  check  of  amount 
due  as  interest  due  on  a  mortgage 
to  prevent  the  entire  mortgage 
debt  from  becoming  due,  is  suf- 
ficient in  the  absence  of  objection 
to  the  amount  of  the  c  h  e  c  k. — 
Gunby  v.  Ingram,  57  Wash.  97,  36 
L.  R.  A.   (N.  S.)   232,  106  Pac.  495. 

As  to  tender  of  payment  of 
money  by  check,  see,  note,  36 
L.  R.  A.  (N.  S.)  232. 

Setting  aside  conveyance  of  real 
estate  sought  on  the  ground  of 
fraud  and  duress,  allegation  of  a 
tender  or  offer  to  restore  to  de- 
fendant everything  received  from 
him,  such  averment  as  to  tender 
or  offer  being  made  in  the  lan- 
guage of  the  statute,  is  sufficient. 
—Hick  v.  Thomas,  90  Cal.  289,  27 
Pac.  208,  376. 

Suit  to   rescind  contract  for  e.x- 


647 


§  496  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

instrument  or  thing  tendered/  where  it  is  something  other 
than  money ;  must  in  addition  show  that  the  party  plead- 
ing the  tender  not  only  was  at  all  times  ready  and  willing 
to  perform  his  part  of  the  agreement  or  contract,^  but 
that  he  has  at  all  times  kept  the  tender  good^  and  been 
in  a  position  to  perform,^"  and  must  pay  the  money  into 
court,  where  that  is  necessary  to  keep  the  tender  good.^^ 

§  496.  Acts  and  omissions  constituting  cause  of 
ACTION — In  general.  Ubi  jus,  ibi  remedium,  is  a  maxim 
of  universal  application,  and  is  said  to  have  given  occa- 
sion for  the  first  invention  of  that  form  of  action  called 
an  "action  on  the  case,"^  and  the  claim  has  been  put 
forward  that  governments  are  founded  upon  it.^  The 
maxim  is  frequently  liberally  translated  as  declaring  that 
*  *  there  is  no  wrong  or  injury  mthout  a  remedy" ;  but  this 
is  not  an  exact  translation,  and  does  not  express  the  true 
meaning  of  the  Latin  words  as  set  forth.  The  correct 
doctrine  of  the  maxim,  which  is  that  ''where  there  is  a 

change  of  lands,  plea  of  tender  or  8  Redington  v.   Chase,   34   C  a  1. 

offer  to   restore   all   plaintiff   had      666. 

received    from    defendant    by    the  9  Payment   in    notes  of  desig- 

exchange,  is  sufficient.  —  Day  v.  ^^ted  third  parties  being  called 
Mooney,  3  Okla.  608,  41  Pac.  142.      ^^^  '"^  ^^^  contract,  in  addition  to 

alleging  a  tender  and   refusal,   it 
must   be   averred    that   the    party 

pleading   the    tender   still   has    in 
been    tendered,    this    is    sufficient.      ,  .  ■        ^u  -j        4.       • 

^  ,    „^^    .~      Ills   possession   the   said   notes   in 

which   payment   is   to   be   made 

under   the    contract. — M  c  R  e  a  v. 

Atlantic  &  N.  C.  R.  Co.,  58  N.  C. 

Deed   with   covenant  of  general       (5  j^^es  Eq.)    395. 

warranty  provided  for  in  contract,  jo  Funkhouser  v.  Purdy,  1  Blackf. 

averiing  the  tender  of  a  "deed  in      (ind.)  294. 

fee"  is  insufficient— McCulloch  V.  11  Halpin    v.    Phoenix    Ins.    Co., 

Dawson,  1  Ind.  413.  118  >j  Y.  165,  23  N.  E.  482;  Wright 

Offer  to  execute  a  bond  is  not      v.  Robinson  &  Co.,  84  Hun  (N.  Y.) 

the  tender  of  a  bond  required  to      172,  32  N.  Y.  Supp.  463. 

be    delivered    by    the    contract. —  1  See    Broom's    Legal    Maxims, 

Alexandria  R.  Co.  v.  National      181.  • 

Junction  R.  Co.,  1  MacA.    (D.  C.)  2  See    1    Hughes    on   Procedure, 

203.  §  126. 

648 


7  An   instrument  of  kind   called 
for    in    contract   alleged    to    have 


-Haile  v.  Smith,  113  Cal.  656,  45 
Pac.  872;  Emmons  v.  Kiger,  23 
Ind.  483. 


ch.  I.]  ACTS  AND  OMISSIONS — CAUSE  OF  ACTION.  §  497 

right  [granted  by  law]  there  is  a  remedy," — which  is 
quite  a  different  thing  from  that  set  out  in  the  translation 
above  quoted.  Lord  Chief  Justice  Holt,  one  of  England's 
renowned  judges,  has  said  that  if  a  man  has  a  right  he 
must  have  a  means  to  vindicate  and  maintain  it ;  that  it  is 
a  vain  thing  to  imagine  a  right  without  a  remedy,  for 
want  of  right  and  want  of  remedy  are  reciprocal.^  This 
is  idealistic,  reads  well,  but  was  not  sufficiently  cogitated, 
because  it  fails  to  take  into  consideration  and  give  due 
weight  to  that  other  maxim  of  the  law,  equally  well- 
established  as  is  the  maxim  first  above  quoted,  and  also 
of  universal  application  where  the  principle  is  involved, 
ubi  non  est  lex,  ibi  non  est  transgressio,  quoad  mundum, — 
where  there  is  no  law,  there  can  be  no  transgression,  so 
far  as  relates  to  the  world, — which  seems  to  be  a  practical 
application  of  St.  Paul's  declaration  that  ** where  there  is 
no  law,  there  is  no  transgression."^  We  have  already 
seen,^  and  the  point  will  be  further  discussed  presently,^ 
that  a  man  may  suffer  injury  in  his  business,  and  sustain 
actual  financial  loss,  without  the  courts  being  able  to 
grant  relief  from  the  injury,  or  damages  for  the  loss. 
In  other  words,  it  is  not  every  act  of  commission  or 
omission,  on  the  part  of  another,  which  constitutes  a 
cause  of  action  at  law  or  of  a  suit  in  equity,  even  though 
injury  is  caused  or  financial  loss  suffered. 

§497.    Act  of  God.    What  is  termed  an  ''act  of 

God,"  since  the  time  of  Sir  Edward  Coke,^  has  ordinarily 
had  the  effect  to  relieve  men  of  responsibility,-  when  un- 

3  Ashby  V.  White,  2  Ld.  Raym.      Co.,  25  Cal.  403,  1  Moit.  Min.  Rep. 
938,  953,  92  Eng.  Repr.  126,  135.  107;  Palack  v.  Piochi,  35  Cal.  416, 

4  Romans  IV    15.  ^^    Am.    Dec.   115;    Bohannan   v. 

_„  ,       '  Mohammod,     42    Cal.    227,     230; 

5  See,  ante,  §  6.  '  ' 

Chidester    v.    Consolidated    Ditch 

6  See,  post,  §§504,  508-510.  ^^^  ^^  ^al.  197;   Rodgers  v.  Cen- 
1  "Act  of  God"  is  a  phrase  first      tral    Pac.    R.    Co.,    67    Cal.    607,    8 

used    in    Shelley's    Case,    1    Coke,      Pac.   377. 

93b,  97b,  76  Eng.  Repr.  206,  219.  see,  also,  authorities  cited,  foot- 

•^  Turner  v.   Tuolumne   Water      note  4,  this  section. 

G49 


§497 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  11, 


mixed  with  human  act  or  omission.  The  term  has  been 
variously  defined  in  different  cases,  these  definitions 
differing  rather  in  phraseology,  or  mode  of  expression, 
than  in  content  or  significance  f  and  all,  in  effect,  describe 
an  act  of  God  as  an  occurrence, — usually  an  accident  or 
catastrophe, — due  directly  and  exclusively  to  natural 
causes  or  the  irresistible  forces  of  Nature,  against  which 
no  amount  of  human  care  or  foresight,  reasonable  to  have 
been  expected,  could  have  availed,  avoided  or  prevented.^ 
But  in  those  cases  in  which  any  human  agency  inter- 
venes, or  the  occurrence  or  accident  could  have  been 
guarded  against  by  reasonable  care  and  the  prudent 
foresight  reasonably  to  be  expected,  liability  attaches, 
and  a  cause  of  action  arises.^  Thus,  a  carrier  is  not  re- 
lieved from  liability  by  an  act  of  God  where  his  or  its 


3  New  Brunswick  Steamboat  & 
Canal  Transp.  Co.  v.  Tiers,  24 
N.  J.  L.  (4  Zab.)  697,  714,  64  Am. 
Dec.  394. 

■i  See  authorities  in  footnote  2, 
tliis  section,  and  Ryan  v.  Rogers, 
96  Cal.  346,  31  Pac.  244;  Williams 
V.  Grant,  1  Conn.  487,  491,  7  Am. 
Dec.  235;  Hale  v.  New  Jersey 
Steam  Nav.  Co.,  15  Conn.  539,  39 
Am.  Dec.  398;  McHenry  v.  Phila- 
delphia, W.  &  B.  R.  Co.,  4  Harr. 
(Del.)   448-9;   Pennewill  v.  Cullen, 

5  Harr.    (Del.)    238,   241;    Chicago 

6  N.  W.  R.  Co.  V.  Sawyer,  69  111. 
285,  18  Am.  Rep.  613;  Parmelee 
V.  Lowitz,  74  111.  116,  24  Am.  Rep. 
276;  Wald  v.  Pittsburg,  C.  C.  & 
St.  L.  R.  Co.,  162  111.  545,  53  Am. 
St.  Rep.  332,  35  L.  R.  A.  356,  44 
N.  E.  888;  Clay  County  v.  Simson, 
1  Dak.  403,  46  N.  W.  592;  Bras- 
seau  V.  The  Hudson,  11  La.  Ann. 
427;  Fergusson  v.  Brent,  12  Md. 
9,  31,  71  Am.  Dec.  582;.  Thomas 
V.  Boston  &  P.  R,  Corp.,  51  Mass. 
(10  Mete.)  472,  476,  43  Am.  Dec. 
444;    Dorman   v.   Ames,    12   Minn. 


451;  Wolf  V.  American  Express 
Co.,  49  Mo.  421,  425,  97  Am.  Dec. 
406;  McClary  v.  Sioux  City  &  P.  R. 
Co.,  3  Neb.  44,  53,  19  Am.  Rep. 
641;  Chicago,  B.  &  Q.  R.  Co.  v. 
Manning,  23  Neb.  552,  37  N.  W. 
462;  Black  v.  Chicago,  B.  &  Q.  R. 
Co.,  30  Neb.  197,  46  N.  W.  428; 
Mershon  v.  Hobensack,  24  N.  J.  L. 
(2  Zab.)  372,  377;  New  Bruns- 
wick Steamboat  &  Canal  Transp. 
Co.,  24  N.  J.  L.  (4  Zab.)  697,  714. 
64  Am.  Dec.  394;  Elliott  v.  Ros- 
sell,  10  Johns.  (N.  Y.)  1,  11,  6 
Am.  Dec.  306;  BeU  v.  Reed,  4 
Penn.  (Pa.)  126,  128,  5  Am.  Dec. 
398;  Hays  v.  Kennedy,  41  Pa,  St. 
378,  80  Am.  Dec.  627;  Bason  v. 
Charleston  &  C.  Steamboat  Co., 
1  Harp.  (S.  C.)  262,  265;  Cheval- 
lier  V.  Straham,  2  Tex.  115,  124, 
47  Am.  Dec.  639;  K  1  a  u  b  e  r  v. 
American  Express  Co.,  21  Wis.  21, 
24,  91  Am.  Dec.  452;  The  Majestic, 
166  U.  S.  375,  41  L.  Ed.  1039,  17 
Sup.  Ct.  Rep.  597. 

5  Id.;    Welfelt   v.   Illinois    Cent. 
R.  Co.,  149  111.  App.  326. 


650 


cIl.  I.]  ACTS  DONE  WITH  CONSENT,  §  498 

negligence  concurred  in  the  loss  or  injury;^  e.  g.,  where 
its  negligence  brings  the  property  injured  or  destroyed 
into  contact  with  the  destructive  natural  agency,'  or  the 
loss  of  or  injury  to  the  property  is  due  to  the  carrier's 
negligence  in  failure  to  forward  or  ship  the  property  con- 
signed to  it  for  that  purpose.^ 

§  498.    Acts  done   with   consent — Volenti   non" 

FIT  iNJUKiA.  Ever  since  the  days  of  Bracton/  volenti  non 
fit  injuria  has  been  the  rule  of  the  English  common  law — 
an  injury  is  not  done  to  the  willing;  or,  as  more  fully  ex- 
pressed in  the  civil  law,  from  which  the  maxim  is  sub- 
stantially derived,  nulla  injuria  est  quae  in  volentem 
fiat- — that  is  no  injury  which  is  done  to  a  willing  party. 
In  this  country  it  is  also  a  well-settled  principle  of  law 
that  if  one  consent  to  an  act  and  suffers  injury  or  loss 
thereby,  he  is  not  injured  by  the  act  in  a  sense  which  en- 
ables the  courts  to  furnish  redress  for  the  injury  or  dam- 
ages for  the  loss^ — except  possibly  in  those  cases  in  wdiich 
the  act  consented  to  is  illegal  or  against  public  policy;'' 
but  in  order  to  constitute  consent,  the  minds  of  the  parties 
must  meet  upon  the  same  thing  at  the  same  time,^  by  par- 

6  Sandy   v.   Lake    Street   El.   R.  chison,  T.  &  S.  F.  R.  Co.,  94  Minn. 
Co.,  235  111.  202,  85  N.  E.  300.  274,  110  Am.  St.  Rep.  361,  3  Ann. 

7  Tate  V.  Missouri  Pac.  R.  Co.,  Cas.  450,  69  L.  R.  A.  512,  102  N.  W. 
157   111.   110.  709;    Fentiman  v.  Atchison,  T.   & 

s  Alabama    Great    Southern    R.  S.   F.   R.   Co.,   44   Tex.   Civ.   App. 

Co.  V.  Quarles,   145  Ala.   439,   117  461,  98   S.  W.   939. 

Am.  St.  Rep.  54,  8  Ann.  Cas.  308,  i  Bract.,  fol.  18. 

5  L.  R.  A.  (N.  S.)  869,  40  So.  120;  2  Dig.,  47,  10,  1,   5. 

Alabama   Great    Southern    R.    Co.  3  Dwyer  v.  Carroll,  86  Cal.  298, 

V.    Elliott,   150   Ala.   384,   124   Am.  303,  24  Pac.  1015;   Mahoney  Land 

St.    Rep.    72,    9    L.    R.   A,    (N.    S.)  Co.  v.  Cayuga  Investment  Co.,  88 

1265,  43  So.  738;  Arkansas  South-  Wash.    529,    L.    R.    A.   191GC,    939, 

ern  R.  Co.  v.  Murphy,  89  Ark.  566,  153   Pac.   308. 

103     S.    W.    743;     Green-Wheeler  See,  also,  notes,  59    L.   R.  A. 

Shoe  Co.  V.  Chicago,  R.  I.  &  P.  R.  88  (d),   L.  R.  A.  1916C,  940. 

Co.,  130  Iowa  126,  8  Ann.  Cas.  45,  4  See,  post,  §  499. 

5  L.  R.  A.  (N.  S.)   883,  106  N.  W.  r,  Dwyer  v.  Carroll,  86  Cal.  298, 

498;   Bibb  Broom  Corn  Co.  v.  At-  303,  24   Pac.  1015. 

651 


§499 


CODE   PLEADING  AND   PRACTICE. 


[Pt.  II, 


ties  capable  of  consentiug.^  Thus,  consent  to  carnal 
knowledge  by  a  female  above  the  age  of  consent,  estops 
her  to  maintain  an  action  for  damage  because  of  the  inter- 
course ;"  a  divorce  consented  to,  the  party  consenting  can 
not  maintain  an  action  to  vacate  and  set  aside  the  decree  f 
consent  to  the  erection  of  a  garage  for  the  accommodation 
of  the  tenants  of  an  apartment  house,  prevents  the  owner 
of  the  apartment  house  from  maintaining  an  action,  at 
law  or  in  equity,  on  the  ground  that  the  garage,  operated 
in  an  ordinarily  careful  manner,  is  a  private  nuisance.* 


§499. 


When  principle  does  not  apply.    In 


those  cases  in  which  the  act  consented  to  and  complained 
of  is  a  wrong  and  unlawful,  is  a  tort,  and  is  against  public 
policy,  the  consent  thereto  can  not  relieve  the  act  of  its 
unlawfulness,  and  does  not  deprive  the  party  injured  of 
a  right  of  action  for  the  damages  suffered  on  account 
thereof.  Thus,  consent  to  an  assault,  and  engaging  in  mu- 
tual combat,  can  not  be  pleaded  in  bar  of  or  as  a  defense 
to  an  action  to  recover  damages  for  the  injuries  received 


6  Damages  for  rape  of  girl  under 
•".tatutory  age,  consent  of  the 
female  to  the  act  does  not  relieve 
defendant  of  liability  to  respond 
In  damages. — Hough  v.  Iderhoff, 
69  Ore.  568,  Ann,  Cas.  1916A,  247, 
139  Pac.  931;  Priboth  v.  Haveson, 
41  Okla.  692,  132  Pac.  973;  Alt- 
man  V.  Eckermann  (Tex.),  132 
S.  W.  523. 

TLind  V.  Class,  88  Cal.  6,  25 
Pac.  972;  Beseler  v.  Stephani,  71 
111.  400;  Robinson  v.  Musser,  78 
Mo.  153;  Campagne  v.  Harney, 
189   Mo.  709,   88   S.  W.   92. 

Without  consent  it  is  otherwise, 
of  course. — Dickey  v.  McDonnell, 
41  111.  62;  Totten  v.  Totten.  172 
Mich.  565,  138  N.  W.  2.57;  Dean 
V.  Raplee,  145  N.  Y.  319.  39  N.  E. 
952;  Koenig  v.  Nott,  2  Hilt.  (X.  Y.) 


323,  8  Abb.  Pr.  384;  Watson  v. 
Taylor,  35  Okla.  768,  131  Pac.  922. 

s  Robinson  v.  Robinson,  77 
Wash.  663,  51  L.  R.  A.  (N.  S.) 
534,  138  Pac.  288. 

See,  also,  note,  51  L.  R.  A. 
(N.  S.)   534. 

9  Mahoney  Land  Co.  v.  Cayuga 
Invest.  Co.,  88  Wash.  529,  L.  R.  A. 
1916C,  939,  153  Pac.  308.  See: 
Fresno,  City  of,  v.  Fresno  Canal 
&  Irr.  Co.,  98  Cal.  179,  32  Pac. 
9  4  3;  Buchanan  v.  Logansport, 
C.  &  S.  W.  R.  Co.,  71  Ind.  265; 
Attorney-General  ex  rel.  Easton  v. 
New  York  &  L.  B.  R.  Co.,  24 
N.  J.  Eq.  49;  Sprague  v.  Steere,  1 
R.  I.  247;  Huntington  &  K.  Land 
Devel.  Co.  v.  Phoenix  Powder 
Mfg.  Co.,  40  W.  Va.  711,  21  S.  E. 
1037. 


652 


ch.  I.] 


CONSENT — BREACH  OF  CONTRACT. 


§500 


in  such  combat,^  although  the  contrary  has  been  held  in 
Kentucky;-  such  consent  being  no  justification  for  the 
unlawful  act,  which  was  against  the  peace  and  dignity  of 
the  state,^  and  a  license  or  consent  to  an  unlawful  act  is 
no  defense  in  an  action  therefor  ;^  but  the  defendant  may 
counter-claim  damages  for  injuries  received  in  the  com- 
bat,^ and  the  fact  that  both  participants  sought  the  fight 
may  be  pleaded  and  proved  in  mitigation  of  damages.^ 
The  same  is  thought  to  be  true  of  a  consent  to  an  abortion, 
or  to  an  attempt  to  produce  an  abortion,"^  which  is  like- 
wise unlawful  and  against  public  policy,  although  it  has 
been  said  that  a  consent  to  treatment  for  the  purpose  of 
producing  an  abortion  precludes  any  right  of  action  for 
inducing  and  aiding  in  the  attempt.^ 


§500. 


Breach  of  contract.    While  a  wrong  ^vith- 


out  damage,  or  damage  without  a  wrong,  does  not  consti- 


1  Logan  V.  Austin,  1  Stew.  (Ala.) 
476;  Thomas  v.  Reily,  114  111. 
App.  522;  Adams  v.  Waggoner, 
33  Ind.  351,  5  Am.  Rep.  230;  Lund 
V.  Tyler,  115  Iowa  236,  88  N.  W. 
333;  McNeil  v.  Mullin,  70  Kan. 
640,  79  Pac.  168;  Grotton  v.  Gilder, 
84  Me.  589,  30  Am.  St.  Rep.  413, 
24  Atl.  1008;  Lizana  v.  Lang,  90 
Miss.  469,  43  So.  477;  Jones  v. 
Gale,  22  Mo.  App.  637;  Morris  v. 
Miller,  83  Neb.  244,  131  Am.  St. 
Rep.  636,  17  Ann.  Cas.  1047,  20 
L.  R.  A,  (N.  S.)  911,  119  N.  W. 
458;  Barholt  v.  Wright,  45  Ohio 
St.  179,  4  Am.  St.  Rep.  535,  12 
N.  E.  185;  Schulter  v.  Williams, 
I  Ohio  Due.  Repr.  47;  Stout  v. 
Wren,  8  N.  C.  (1  Hawks)  420,  9 
Am.  Dec.  653;  Bell  v.  Mansley,  48 
N.  C.  (3  Jones  L.)  131;  Willey  v. 
Carpenter,  64  Vt.  212,  15  L.  R.  A. 
853,  23  Atl.  630;  Shay  v.  Thomp- 
son, 59  Wis.  540,  48  Am.  Rep.  538, 
18   N.  W.  473. 


2  Lykins  v.  Hamrick,  144  Ky. 
83,  137   S.  W.   852. 

3  State  V.  Roby,  83  Vt.  129,  74 
Atl.  638. 

As  to  effect  of  consent  on  crim- 
inal liability,  see  note,  15  L.  R.  A. 
854. 

4  Stout  V.  Wren,  8  N.  C.  (1 
Hawks)  420,  9  Am.  Dec.  653.  See 
Toll  Bridge  Co.  v.  Butterworth,  30 
Conn.  380. 

5  Gutzman  v.  Clancy,  114  Wis. 
589,  58  L.  R.  A.  744,  90  N.  W.  1081. 

0  Grotton  v.  Glidden,  84  Me.  589, 
30  Am.  St.  Rep.  413,  24  Atl.  1008; 
Morris  v.  Miller,  S3  Neb.  244,  131 
Am.  St.  Rep.  G30,  17  Ann.  Cas. 
1047,  20  L.  R.  A.  (N.  S.)  911,  119 
N.  W.  458;  Barholt  v.  Wright,  45 
Ohio  St.  179,  4  Am.  St.  Rep.  535, 
12  N.   E.   185. 

7  S  e  e  Courtney  v.  Clinton,  18 
Ind.  App.  626,  48  N.  E.  799. 

s  Goldnamer  v.  O'Brien,  98  Ky. 
569,  56  Am.  St.  Rep.  378,  36  L.  R.  A. 
715,  :53   S.  W.  831. 


653 


§501 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  11. 


I 


tute  a  cause  of  action,*  as  we  have  seen^  and  shall  see 
more  fully  presently,^  because  of  the  maxim  de  minimus 
non  curat  lex, — the  law  does  not  care  for,  or  take  notice 
of,  trifles, — does  not  apply  to  cases  of  a  positive  and 
wrongful  invasion  of  another's  property^  or  rights,^  how- 
ever trifling.  Thus,  a  druggist  who,  as  a  joke,  drops 
croton  oil  on  candy  purchased  for  another,  is  liable  in 
damages  to  such  other  for  an  assault  and  battery.^  And 
in  the  case  of  a  breach  of  an  express  contract,  a  cause  of 
action  for  such  breach  accrues,  although  no  actual  dam- 
ages, or  injury,  or  loss  is  suffered  thereby^ 

§  501.    Breach  of  trust.    A  mere  technical  breach 

of  an  express  trust,  on  the  other  hand,  creates  no  cause 
of  action.^  Thus,  where  A  delivers  to  B  a  certain  number 
of  shares  of  stock  of  a  corporation,  as  collateral  security, 
such  shares  to  be  sold  whenever  B  could  realize  a  specified 
price  therefor  per  share,  and  B  disposed  of  the  shares  of 
stock  on  his  own  account  for  a  sum  per  share  other  than 
that  agreed  upon,  and  in  settlement  with  A  transferred  to 
him  an  equal  number  of  shares  of  stock,  of  the  same  kind 
and  value,  in  the  same  corporation,  in  an  action  charging 
fraud  in  the  settlement,  and  seeking  to  recover  the  money 
for  the  shares  sold,  the  transaction  was  held  to  be  a  mere 


1  Janesville,  City  of,  v.  Car- 
penter, 77  Wis.  288,  20  Am.  St. 
Rep.  123,  8  L.  R.  A.  808,  46  N.  W. 
128. 

2  See,  supra,  §  6. 

3  See,  post,  §§  519,  520. 

4  Hartman  v.  Swindell,  54 
N.  J.  L.  589,  18  L.  R.  A.  44,  25 
Atl.   356. 

a  Seneca  Road  Co.  v.  Auburn  & 
Rochester  R.  Co.,  5  Hill  (N.  Y.) 
170. 

See,  post,  §  519,  footnote  3. 

« See:  State  v.  Monroe,  121 
N.  C.  677,  61  Am.  St.  Rep.  686,  43 
L.   R.   A.    861,   28    S.   E.    547;    Mc- 


Kibbin  v.  Bax,  79  Neb.  577,  126 
Am.  St.  Rep.  677,  13  L.  R.  A. 
(N.  S.)   646,  113  N.  W.  158. 

7  McCarty  v.  Beach,  10  Cal.  461. 
See:  Moody  v.  Peirano,  7  Cal. 
Unrep.  247,  84  Pac.  783;  Moody 
V.  Peirano,  4  Cal.  App.  411,  88 
Pac.  830;  Cowley  v.  Davidson,  10 
Minn.  392;  Jacobs  Sultan  Co.  v. 
Union  Mercantile  Co.,  17  Mont. 
61,  65,  42  Pac.  109;  Colrick  v. 
Swinburne,  105  N.  Y.  503,  12  N.  E. 
427;  Sunnyside  Land  Co.  v.  Wil- 
lamette Bridge  Co.,  20  Ore.  544, 
26   Pac.   835. 

1  Atkins  V.  Gamble,  42  Cal.  86, 
10  Am.  Rep.  282, 


654 


ch.  I.]  BREACH  OF  TRUST — CONSPIRACT.  §  502 

technical  breach  of  trust  and  was  damnum  absque  injuria.^ 
This  holding  was  put  upon  the  ground  that  certificates  of 
stock  in  a  corporation  are  not  securities  for  money,  or 
negotiable  securities,  but  simply  the  muniments  and  e\d- 
dence  of  the  holder's  title  to  a  given  number  of  shares  in 
the  property  and  franchises  of  the  corporation  of  which 
he  was  a  member,^  and  that  the  defendant  was  at  all  times 
able  and  ready  and  willing  to  transfer  to  the  plaintiff  the 
same  number  of  shares  of  similar  stock  in  the  same  cor- 
poration, and  which  had  precisely  the  same  value."*  If 
the  corporation  had  issued  two  classes  of  stock,  one  of 
more  value  than  the  other,  and  the  stock  returned  by  B 
had  been  of  the  issue  of  the  inferior  value,  the  case  would, 
of  course,  have  been  different,  and  the  plaintiff  would 
have  been  entitled  to  damages.^ 

§  502.    Conspiracy    not   executed.     Damages    or 

injury  actually  suffered,  by  an  infringement  of  personal 
rights  or  an  interference  with  or  injury  to  his  property, 
however  slight  the  actual  injury,^  is  the  only  basis  of  a 
cause  of  action ;  a  simple  unexecuted  conspiracy  to  inter- 
fere wdth  personal  rights  or  property,  or  to  injure  the 
same,  does  not  constitute  a  cause  of  action ;-  and  where 

^I<i-  Duer)   480;   Horton  v.  Morgan,  19 

As  to   measure  of  damages  for  N.    Y.    170,    75   Am.    Dec.    311,   af- 

sale   of  stock    by   factor   at  price  firming  13  N.  Y.  Super.  Ct.  Rep. 

below    instructions,    see,   note,    51  (6  Duer)   56. 

Am.  Dec.  351.  See,    also,   note,    75   Am.    Dec. 

3  See:     Hardenbergh    v.    Bacon,  319(c). 
33  Cal.  356;  Hawley  v.  Brumagim,  As    to    nature    of    stock    certifi- 

33   Cal.   394;    Craig  v.   Hesperia  cates,  see  note,  12  L.  R.  A.  781. 
Land  &  Water  Co.,  113  Cal.  7,  12,  4  Atkins  v.  Gamble,  42  Cal.   86, 

54  Am.  St.   Rep.  316,  35  L.   R.  A.  10   Am.    Dec.   282, 
306,  45   Pac.   10;    Smith  v.   San  5  See  Wilson  v.  Little,  2  N.  Y. 

Francisco   &   N.   Pac.   R.   Co.,   115  443,  51  Am.  Dec.  307. 
Cal.  584,  593,  56  Am.  St.  Rep.  119,  i  See,  supra,   §  500. 

35  L.  R.  A.  309,  47  Pac.  582;  Sher-  2  Herron  v.  Hughes,  25  Cal.  555, 

wood  V.  Wallin,   1   Cal.  App.   538,  500;    Taylor  v.  Bid  well,  65  Cal. 

82   Pac.   568;    Mechanics'  Bank  v.  489,    490,    4    Pac.    491;    Parker   v. 

New  York  &  H.  R.  Co.,  13  N.  Y.  Huntington,    68   Mass.'  (2   Gray) 

626,   11  N.   Y.   Super.   Ct.  Rep.    (4  124;    Saville  v.  Roberts,  1  Ld. 

G55 


§  503  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

sucli  a  conspiracy  is  executed  it  is  not  the  conspiracy,  but 
the  damage  done  or  injury  suffered,  that  is  the  gravamen 
of  the  action.  Thus,  in  an  action  charging  a  conspiracy 
to  prosecute  plaintiff  for  an  alleged  crime,  and  malicious 
prosecution  in  pursuance  of  such  conspiracy,  it  is  not  the 
conspiracy,  but  the  malicious  prosecution  itself, — the  tort 
charged, — that  is  the  gist  of  the  action.^  Lord  Chief 
Justice  Holt  has  said  that  **an  action  will  not  lie  for  the 
greatest  conspiracy  imaginable  if  nothing  is  put  into  exe- 
cution ;  but  if  the  party  be  damaged,  the  action  will  lie. 
From  which  it  follows  that  the  damage  is  the  ground  of 
action."^  Follomng  this  doctrine  the  supreme  court  of 
California  held  in  an  early  case,^  and  has  ever  since  fol- 
lowed the  rule  that  ''a  simple  conspiracy,  however  atro- 
cious, unless  it  results  in  actual  damage  to  the  party, 
never  was  the  subject  of  a  civil  action,  and,  though  such 
conspiracy  be  charged,  the  averment  is  immaterial  and 
need  not  be  proved.  When  two  or  more  are  sued  for  a 
wrong  done,  it  may  be  necessary  to  prove  a  pre^dous 
combination  in  order  to  secure  a  joint  recovery,  but  it  is 
never  necessary  to  allege  it,  and,  if  alleged,  is  not  to  be 
considered  as  of  the  gist  of  the  action;  that  lies  in  the 
wrongful  and  damaging  act  done."^ 

§  503.    Criminality  of  act.    The  criminality  of  the 

act  complained  of  does  not,  it  has  been  said,  subject  the 
party  to  a  civil  suit  on  account  thereof,  in  the  absence  of 

Raym.    374,    378,    91    Eng.    R  e  p  r.  ilton  v.  Smith,  39  Mich.  222,  231; 

1147,    1149.  Martin  v.  Holbrook,  157  Fed.  717. 

•Ud.;    More  v.   Finger,   128   Cal.  4  Saville    v.    Roberts,    1    Ld. 

313,  319,  60  Pac.  933;    Dowdell  v. 


Carpy,  129  Cal.  168,  61  Pac.  948; 
Russell  V.  Chamberlain,  12  Idaho 
299,  85  Pac.  926;  Homer  v.  Cham- 


Raym.  374,  378,  91  Eng.  R  e  p  r. 
1147,  1149.  See,  also,  Hutchins  v. 
Hutchins,  7  Hill   (N.  Y.)    104. 


berlain.  12  Idaho  304,  85  Pac.  927;  •">  Herron  v.  Hughes,  25  Cal.  555, 

Gilmore   v.    Mastin,    115    111.    App.      560. 

46;  James  v.  Carson,  111  Ind.  522,  0  Quoted  case  followed  in  Dow- 

13   N.   E.   44;    Parker  v.   Hunting-      dell  v.  Corpy,  129  Cal.  168,  170,  61 
ton,  68  Mass.  (2  Gray)  124;  Ham-      Pac.    948. 

656 


Ch.  I.]  CRIMINALITY  OF  ACT.  §  503 

a  statutory  provision  giving  a  right  of  action,  unless  some 
private  interest  is  invaded,  or  private  property  affected 
or  damaged.  Thus,  it  is  held  by  a  line  of  cases  that  a 
public  officer  is  not  liable,  in  the  absence  of  a  statute 
charging  him  therewith,  for  interest  paid  to  him  on,  or 
profits  made  by  him  out  of,  public  funds  in  his  hands, 
where  the  liability  for  such  funds  is  absolute,  although 
the  law  makes  him  criminally  liable  for  putting  the  public 
money  out  at  interest,  or  using  it  to  make  a  profit  ;^  but 
where  there  is  a  statutory  provision  requiring  the  officer 
to  pay  into  the  county  treasury  all  "fees,  perquisites  and 
emoluments,"  there  is  a  liability  on  his  bond  for  interest 
received  on  public  moneys  coming  into  his  hands. ^  On 
the  other  hand  there  is  a  strong  line  of  cases,  and  the 
weight  of  authority,  to  the  effect  that  where  a  public 
officer  receives  interest  on  a  public  fund,  from  deposit  in 
a  bank  or  otherwise,  in  violation  of  law,  the  interest  thus 
received  comes  into  his  hands  ''by  \T.rtue  of  his  office," 
and  he  is  liable  on  his  bond  therefor.^  The  New  York 
court  pertinently  remarks  that  the  notion  that  a  public 
officer  may  keep  back  interest  which  he  has  received  upon 
the  deposit  of  public  moneys,  as  a  perquisite  of  his  office, 
is  an  affront  to  law  and  morals,  for  if  done  with  evil  in- 

1  People  V.  Walsen,  17  Colo.  170,  855,  52  So.  865;  Richmond  County 
15  L.  R.  A.  456,  28  Pac.  1119;  Supervisors  v.  Wandel,  6  Lans. 
Renfroe  v.  Colquitt,  74  Ga.  618;  (N.  Y.)  33;  affirmed,  59  N.  Y.  645; 
Maloy  V.  Bemolillo  County  Com-  Thompson  v.  Territory,  10  Okla. 
missioners,  10  N.  W.  638,  52  420,  63  Pac.  355;  Baker  v.  Wil- 
L.   R.  A.  126,  62  Pac.   1106.  liams  Banking  Co.,  42  Ore.  223,  70 

2  Hughes  V.  People,  82  111.  78;  Pac.  711;  Wilkes  Barre,  City  of. 
State  of  South  Dakota  v.  Collins  v.  Rockafellow,  171  Pa.  St.  177, 
(U.  S.  Sup.  Ct.  March  17,  1919),  50  Am.  St.  Rep.  795,  30  L.  R.  A. 
L.  Ed.  Adv.  Sheets,  April  15,  1919,  393,  33  Atl.  269;  State  v.  McFet- 
p.  325,  39  Sup.  Ct.  Rep.  261.  ridge,  84  Wis.  473,  20  L.  R.  A.  223, 

3  Rhea  v.  Brewster,  130  I  o  w  a  54  N.  W.  1,  998;  State  v.  Har- 
729,    732,    8    Ann.   C  a  s.    389,    107  shaw,  84  Wis.  536,  54  N.  W.  17. 

N.   W.   940;    Vansant  v.    State,   96  As  to  liability  on  bond  of  public 

Md.    129,    53    Atl.    711;    Adams    v.      officer   for    interest,    see    note,    91 
Williams,  97   Miss.   113,  Ann.  Cas.      Am.  St.  Rep.  527;  8  Ann.  Gas.  391, 
1912C,    1129,   30    L.    R.   A.    (N.    S.)       30   L.  R.  A.   (N.  S.)   855-863. 
I  Code  PI.  and  Pr.— 42  657 


§  504  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

tent  it  is  nothing  less  tlian  embezzlement;  and  that  the 
item  of  interest  is  within  the  terms  of  his  official  bond.^ 

<^  504.    Damages  incident  to  public  improvement 

OR  WORK.  In  those  cases  in  which  there  is  consequential 
damage  to  private  individuals  incident  to  and  the  direct 
result  of  the  prosecution  or  completion  of  public  improve- 
ments or  works,  which  are  duly  authorized  by  law,  this 
does  not  constitute  a  taking  of  private  property  for  pub- 
lic use  within  the  meaning  of  a  constitutional  provision 
giving  compensation  for  property  so  taken,  and  does  not 
constitute  a  cause  of  action,  such  damage  being  regarded 
as  damnum  absque  injuria.^  Thus,  a  turning  or  straight- 
ening of  a  river  channel  at  a  point  at  which  it  flows  into 
another  river,  so  that  the  land  on  the  opposite  shore  of 
the  second  river  is,  five  years  afterwards,  injured  or 
destroyed  by  the  increased  velocity  of  the  current  of  the 
discharged  waters,  such  injury  or  destruction  does  not 
constitute  a  public  taking  of  private  property,  and  does 
not  entitle  the  riparian  owner  injured  to  damages  there- 
for;- and  the  commissioners  appointed  to  thus  turn  or 
straighten  the  river  are  not  liable  to  the  injured  riparian 
owner  for  the  damages  caused  by  an  error  of  judgment 
in  making  the  public  improvement,  where  they  do  not  act 
dishonestly  or  maliciously.^    A  bridge  ordered  and  con- 

4  Richmond  County  Supervisors  &   Swift  Cambridge  River  Imp. 

V.  Wendel,  6  Lans.  (N.  Y.)  32;  af-  Co.,    82   Me.   17,   17   Am.  St.    Rep. 

firmed,  59  N.  Y.  645.  459,   7    L.    R.   A.   460,   19   Atl.    87; 

1  Green   v.    Swift,    47    Cal.    536;  Durham  v.  Lisbon  Falls  Fibre  Co., 

Green  v.  State,  2  Cal.  Unrep.  737,  100    Me.    238,    246,    61    Atl.    177; 

12  Pac.  683;   Moulton  v.  Parks,  64  Baker  v.  French,  102  Me.  412,  67 

Cal.  166,  178,  30  Pac,  613;  Conniff  Atl.    308;    Davidson   v.    Boston    &. 

v.  San  Francisco,  City  of,  67  Cal.  M.  R.  Co.,  57  Mass.  (3  Cush.)  91; 

45,  50,  7  Pac.  41;  Green  v.  State,  Casey  v.  Vv'rought  Iron  Bridge  Co.. 

73    Cal.   29,    11   Pac.   602,    14    Pac.  114  Mo.  App.  61,  89  S.  W.  330. 
610;  Hoagland  v.  State  (Cal.  Aug.  2  Green   v.    Swift,    47    Cal.    536; 

27,  1889),  22  Pac.  142;    De  Baker  Hoagland  v.   State   (Cal.  Aug.  27, 

V.   Southern  Cal.  R.  Co.,  106   Cal.  1889),  22  Pac.  142. 
257,  283,  46   Am.  St.   Rep.   237,   39  3  Qreen   v.    Swift,    47   Cal.    536. 

Pac.  610;    B  a  s  s  v.   State,  34  La.  See  Black  v.  Linn,  17   S.  D.  338, 

Ann.  502;   Brooks  v.  Cedar  Brook  96  N.  W,  697. 

658 


Ch.  I.]  PUBLIC   IMPROVEMENT — DAMAGES.  §  504 

structed  by  a  constituted  authority  in  the  manner  pro- 
vided by  law,  can  not  constitute  a  nuisance  giving  to  a 
private  individual  a  right  of  action. "*  A  dam  across  an 
abandoned  channel  of  a  river,  the  stream  having  cut  a 
new  channel,  is  a  la^vful  public  improvement,  and  dam- 
ages resulting  from  over-flow  water  obstructed  by  the 
dam,  by  reason  of  the  filling  up  of  the  new  channel,  is  to 
be  regarded  as  *^an  act  of  God,"^  and  does  not  constitute 
a  cause  of  action  in  favor  of  the  party  who  suffers  the 
injury.^  A  dam,  erected  by  legislative  authority,  which 
causes,  at  times,  an  increased  flow  of  water  in  a  river, 
whereby  the  channel  of  the  river  is  deepened  and  widened, 
and  the  soil  of  riparian  lands  somewhat  worn  away,  the 
injuries  thus  caused  are  consequential  and  not  actionable.^ 
Damages  due  to  overflow  of  land  below  a  dam  erected  by 
legislative  authority,  caused  by  a  reasonable  opening  of 
the  gates  at  a  mill,  is  damnum  absque  injuria  f  and  the 
same  is  true  of  damages  caused  by  the  overflow  of  a  dam 
erected  under  authority  of  the  state,^  or  damages  to  a 
riparian  owner  caused  by  the  deflection  of  the  current  of 
a  river  by  the  erection  of  a  dam  authorized  by  law  and 
lawfully  constructed.^"  A  leve^  authorized  by  a  municipal 
corporation  to  be  constructed  by  a  railroad  company, 
where  the  plan  is  conceived  and  executed  in  good  faith, 
neither  the  municipality  nor  the  railroad  company  will  be 
liable  for  consequential  damages  to  a  riparian  owner 
resulting  from  an  error  of  judgment  in  connection  with 
the  construction  of  such  levee  ;^^  and  levee  commissioners, 

4  Case  V.  Wrought  Iron   Bridge      17,  17  Am.  St.  Rep.  459,  7  L.  R.  A. 
Co.,    114    Mo.    App.    61,    89    S.    W.       460,   19  Atl.  87. 

330.  s  Baker  v.  French,  102  Me.  412, 

5  As  to   act    of    God,    see,   ante,      67  Atl.  308. 

§  497.  0  Moulton  v.  Parks,  64  Cal.  166, 

«  Payne  v.   Kansas   City,   St.   J.  178,  30  Pac.  613. 

&   C.   B.   R.   Co.,   1 1  2   M  o.    6,   17  lo  Durham  v.  Lisbon  Falls  Fibre 

L.  R.  A,  628,  20  S.  W.  322.  Co.,  100  Me.  238,  246,  61  At!.  177. 

7  Brooks  V.  Cedar  Brook  &  Swift  n  De  Baker  v.  Southern  Cal.  R. 

Cambridge  River  Imp.  Co.,  82  Me.  Co.,  106  Cal.  257,  283,  46  Am.  St. 

659 


^  505 


CODE  PLEADING  AND  PKACTICE. 


LH.II, 


acting  within  the  scope  of  their  authority,  are  not  liable 
for  errors  of  judgment  and  consequential  injuries  to 
others  from  the  completed  improvement,  where  the  work 
is  done  properly  and  with  due  care,^-  On  the  other  hand, 
it  has  been  said  that  a  drainage  district  is  liable  for  dam- 
ages from  flooding  of  lands  caused  by  the  construction  of 
a  levee  below  them.^^ 

§  505.  Declaration  of  eight  without  other  re- 
lief— In  general.  An  action  for  the  declaration  of 
rights,  either  in  law  or  in  equity,  without  remedial  relief, 
is  a  procedure  comparatively  unknown^  in  American 
judicature,- — frivolous  and  collusive  actions   not  being 


Rep.  237,  39  Pac.  610.     See  Bass 
V.   State,  34  La.  Ann.  502. 

12  Green  v.  Swift,  47  Cal.  536, 
540. 

As  to  levees  as  public  improve- 
ments, see  note,  58   L.   R.  A,  757. 

13  Bradbury  v.  Vandalia  Drain- 
age Dist.,  236  111.  47,  19  L.  R.  A. 
(N.  S.)  991,  86  N.  E.  166. 

1  Exceptions  are  given,  post, 
§  506. 

-  See,  among  ottier  cases:  ALA. 
—Postal  Telegraph-Cable  Co.  v. 
Montgomery,  City  of,  193  Ala.  234, 
09  So.  428.  CAL.— Kinney  v.  New- 
lin,  Cal.  Sup.  (L.  A.  No.  681),  Oct. 
11,  1900;  Foster  v.  Smith,  115  Cal. 
Gil,  47  Pac.  591;  Hunger's  Laun- 
dry Co.  V.  Rankin,  8  Cal.  App.  448, 
97  Pac.  95.  ILL.  — Wendell  v. 
Peoria,  City  of,  274  111.  613,  113 
N.  E.  918.  IND.— Modlin  v.  Grant 
County  Commrs.,  55  Ind.  App.  239, 
103  N.  E.  506.  IOWA— Davidson 
&  Bros.,  S.,  V.  Younker,  163  Iowa 
72,  143  N.  W.  1113.  ME.— Morse 
V.  Ballou,  109  Me.  264,  83  Atl.  799. 
MD.— Woods  V.  Fuller,  61  Md.  457. 
MASS.— Hanson  v.  Griswold,  221 
Mass.  228,  108  N.  E.  1035;  .lohnson 
V.  Foster,  221  Mass.  248,  108  N.  E. 


928.  MO.— State  ex  rel.  Shackel- 
ford V.  McElhinney,  145  S.  W.  1139. 
NEB.— State  ex  rel.  Wright  v. 
Savage,  64  Neb.  648,  90  N.  W.  808, 
91  N.  W.  557;  State  ex  rel.  Ken- 
nedy V.  Broatch,  68  Neb.  687,  706, 
110  Am.  St.  Rep.  477,  493,  94  N.  W. 
1016.  N.  H.— Greeley  v.  Nashua, 
City  of,  62  N.  H.  166.  N.  J.— Funk 
&  Wagnalls  Co.  v.  Stamm,  85  J.  L. 
301,  88  Atl.  1050;  Be  vans  v. 
Bevans,  69  N.  J.  Eq.  1,  59  Atl.  89G. 
N.  M.— Costilla  Land  &  Devel.  Co. 
v.  Allen,  17  N.  M.  343,  128  Pac 
79.  N.  Y.— People  ex  rel.  Geer  v 
Troy,  City  of,  82  N.  Y.  575;  Man 
ning.  In  re,  139  N.  Y.  446,  34  N.  E. 
931;  Hanrahan  v.  Terminal  Station 
Commission,  206  N.  Y.  494,  100 
N.  E.  414,  reversing  152  App.  Div. 
349,  136  N.  Y.  Supp.  1001;  Duns- 
ton  v.  Security  Mut.  Life  Ins.  Co., 
152  App.  Div.  (N.  Y.)  264,  136  N.  Y. 
Supp.  674 ;  New  York  Electric 
Lines  Co.  v.  Gaynor,  167  App.  Div. 
(N.  Y.)  314,  153  N.  Y.  Supp.  244; 
Spingarn's  Estate,  In  re,  69  Misc. 
(N.  Y.)  141,  159  N.  Y.  Supp.  605; 
Davis  V.  Seaward,  85  Misc.  (N.  Y.) 
210,  146  N.  Y.  Supp.  981.  ORE.— 
Sherod   v.   Atchison,   71   Ore.   410. 


GGO 


ch.  I.] 


DECLARING  RIGHT  WITHOUT  RELIEF. 


§505 


tolerated,' — on  the  ground,  as  is  said  in  one  ease,  that 
'  *  the  demands  of  actual,  practical  litigation  are  too  press- 
ing to  permit  the  examination  and  discussion  of  academic 
questions."^  This  is  the  old  and  long-prevailing  doctrine 
of  the  common  law,  founded  upon  the  dual  notion  (1)  that 
remedial  justice  is  always  based  upon  the  infringement 
of  antecedent  fundamental  rights,^  and  that  courts  will 
act  to  enforce  antecedent  rights  against  wrong-doers  only, 
who  are  such  either  in  act  or  in  intent;^  and  (2)  that,  as 
Mr.  Justice  Holmes  recently  put  it,  "the  foundation  of 
jurisdiction  is  physical  force,'" — the  force  behind  the 
court  to  institute  suits  and  to  carry  out  and  enforce  its 


142  Pac.  351.  F  E  D.  —  Southern 
Cotton  Oil  Co.  V.  Central  of 
Georgia  R.  Co.,  204  Fed.  476; 
Southern  Pac.  Co.  v.  Eshelman, 
227   Fed.   928. 

"Moot  cases,"  in  which  it  is 
sought  to  secure  a  judgment  or 
decree  of  the  court  upon  a  pre- 
tended controversy,  when  in  fact 
there  is  no  such  controversy,  or  a 
judgment  as  to  a  right  whicli  has 
not  yet  been  asserted  or  contested, 
or  a  construction  of  a  statute  not 
before  the  court,  or  an  interpreta- 
tion of  a  contract  or  will  not  in 
litigation,  and  the  like,  are  not 
entertained  in  this  country,  as 
yet;  but  the  fact  that  a  suit  is  a 
"friendly"  one  does  not  make  it  a 
"moot  case." — See:  State  ex  rel. 
Jackson  v.  Dolley,  82  Kan.  533, 
108  Pac.  846;  State  v.  First  Cath- 
olic Church,  88  Neb.  2,  7,  128  N.  W. 
657;  Adams  v.  Union  R.  Co.,  21 
R.  I.  134,  79  Am.  St.  Rep.  801,  44 
L.  R.  A.  273,  42  Atl.  515. 

— Mere  refusal  of  public  officer 
to  perform  duty  under  a  statute, 
where  such  refusal  is  merely  to 
test  the  validity  of  the  statute, 
even  though  the  officer  believes  it 


valid  but  wishes  a  judicial  deter- 
mination of  that  fact,  an  action 
brought  against  the  officer  is  not 
a  "fictitious"  action  or  a  "m  o  o  t 
case." — State  ex  rel.  Jackson  v. 
Dolley,  82  Kan.  533,  537,  108  Pac. 
486. 

See,  also,  post,  §  520. 

Election  contest  vain  and  fruit- 
less in  the  courts,  because  the 
legislature  will  have  to  hear  and 
determine  the  question  ab  initio, 
a  court  will  not  assume  jurisdic- 
tion for  any  purpose. — Ellison  v. 
Barnes,  23  Utah  183,  63  Pac.  899. 
See  Johnson  v.  Dosland,  103  Minn. 
147,  114  N.  W.  465. 

3  See,  post,  §  520. 

4  Manning,  In  re,  139  N.  Y.  446. 
34  N.  E.  931.  See,  also,  remarks 
of  Mr.  Justice  Sedgewick  in  State 
ex  rel.  Kennedy  v.  Broatch,  68 
Neb.  687,  706,  110  Am.  St.  Rep. 
477,  493,  94  N.  W.  1016. 

5  Holland's  Jurisprudence,  9th 
ed.,  p.  310. 

«  Salmond's  Jurisprudence,  4th 
ed.,   p.   71. 

7  McDonald  v.  Mabee,  243  U.  S. 
90,  91,  61  L.  Ed.  60S,  609,  37  Sup. 
Ct.  Rep.  343. 


661 


§  506  CODE  PLEADING  AND  PRACTICE.  [Pt.  IT, 

judgments  and  decrees ;  although,  as  Mr.  Justice  Hohnes 
further  remarks,  "in  civilized  times  it  is  not  necessary  to 
maintain  that  power  throughout  proceedings  properly- 
begun,  and  although  submission  by  appearance  may  take 
the  place  of  service  upon  the  person."^  From  this  it  will 
be  seen  that  the  old  English  common-law  concept  has  been 
closely  followed  in  the  judicature  of  this  country.  But 
the  world  has  outgrown  the  antiquated  idea  that  the 
courts  can  not  properly  declare  rights  except  in  cases  of 
an  infringement  of  fundamental  rights,  perpetrated  or 
threatened,  and  we  may  reasonably  hope  for  a  more  en- 
lightened and  liberal  rule  in  this  regard;^  to  secure  it, 
however,  will  require  a  progressive  readjustment  of  our 
system  of  judicature. 

§  506. Exceptions  to  the  rule.  The  Ameri- 
can courts  have  not  adhered  strictly  to  the  old  common- 
law  doctrine, — and  this  cleavage  justifies  us  in  hoping  and 
expecting  further  advancement  and  a  more  enlightened 
judicature, — in  all  proceedings  and  particulars,  the  excep- 
tions being  made  in  cases  in  which  (1)  a  status  is  to  be 
established,  and  that  status  is  of  general  public  interest ; 
(2)  where  a  receiver  is  involved,  or  (3)  where  a  trustee  is 
in  doubt  as  to  his  powers  under  the  trust.  In  the  case 
of  a  receiver,  he  may  always  make  application  to  the  court 
appointing  him  for  information  and  direction  as  to  his 
powers  and  duties ;  but  a  receiver  is  an  officer  of  the  court, 
and  in  this  differs  from  the  ordinary  litigant  seeking  the 
action  or  opinion  of  the  court.  In  the  case  of  a  trustee  in 
doubt,  he  may  apply  to  the  court,  without  a  present  action 
or  controversy,  for  a  construction  of  the  trust  under  which 
he  is  acting,  and  thus  save  himself  from  mistakes,  litiga- 
tion, and  loss.  The  establishment  of  a  status,  being  a  mat- 
ter of  public  importance,  it  may  be  determined  without  the 

s  Id.,  citing  Michigan  Trust  Co.  v.  Gold  Issue  Min.  &  Mill.  Co.,  243 
V.  Ferry,  228  U.  S.  346,  353,  57  U.  S.  93,  61  L.  Ed.  610,  37  Sup.  Ct 
L.   Ed.   867,   874,   33   Sup.   Ct.   Rep.      Rep.  344. 

550;    Pennsylvania   Fire    Ins.    Co.  9  See  discussion,  post,  507. 

662 


•h.  I.] 


DECLARING  RIGHTS,  ETC. — EXCEPTIONS. 


§506 


presence  of  a  bona  fide  cause  or  subject  of  litigation  ;^  and 
in  some  of  the  jurisdictions, — e.  g.,  in  Maine  and  Massa- 
chusetts,— the  legislature  of  the  state,  or  the  executive, 
may  call  upon  the  highest  court  of  the  state  for  its  opinion 
upon  important  questions  of  public  interest,  without  pre- 
senting an  actual  cause  to  be  determined,  and  in  which 
relief  is  to  be  granted.  Thus,  it  has  been  held  that,  with- 
out an  actual  cause  presented,  a  court  may  determine  the 
status  of  municipal  bonds,-  of  irrigation  districts  and  irri- 
gation bonds,^  of  a  public  institution,  such  as  a  medical 


1  Public  interest  involved,  court, 
it  seems,  may  take  cognizance 
without  an  actual  case.  —  See 
Modlin  V.  Grant  County  Commrs., 
55  Ind.  App.  239,  103  N.  E.  506. 

2  Carlson  v.  Helena,  City  of,  38 
Mont.  581,  589,  101  Pac.  163,  citing 
Parker  v.  State  ex  rel.  Powell,  132 
Ind.  419,  31  N.  E.  1114;  Adams  v. 
Union  R.  Co.,  21  R.  I.  134,  44 
L.  R.  A.  273,  42  Atl.  515;  Wilming- 
ton &  W.  R.  Co.  V.  Board  Railroad 
Commrs.,  90  Fed.  93. 

Compare:  State  ex  rel.  Hahn  v. 
Westport,  City  of,  135  Mo.  120,  36 
S.  W.  663;  Berks  County  v.  Jones, 
21  Pa.  St.  416. 

Proceeding  to  determine  valid- 
ity of  municipal  bonds,  under 
statute. — See:  Richter  v.  Chatham 
County  (Ga.),  91  S.  E.  35;  Tyson 
V.  Mcintosh  County  (Ga.),  93 
S.  E.  407;  Colburn  v.  McDonald, 
72  Neb.  431,  100  N.  W.  961;  Hor- 
ton  V.  Howard,  97  Neb.  575,  150 
N.  W.  633. 

3  Confirmation  by  judgment  of 
court  of  competent  jurisdiction,  in 
advance  of  a  n  y  issue  raised  or 
any  cause  presented  for  deter- 
mination, is  provided  by  statute  in 
various  of  the  states  in  the  arid 
regions,  in  respect  to  irrigation 
districts,  and  also  as  to  the  bonds 


issued  by  such  districts;  the  con- 
firmation proceeding  provided  for 
is  simply  an  ascertainment  and 
declaration  of  the  status  of  the 
irrigation  district,  or  of  the  bonds 
issued  by  it,  as  the  case  may  be; 
that  is,  that  the  district  is  duly 
and  regularly  organized,  or  that 
the  bonds  were  legally  and  prop- 
erly issued  under  the  statute,  and 
are  valid.  Such  judgment  of  the 
court  in  a  confirmation  proceed- 
ing is  valid  and  binding  until  set 
aside.  —  See,  among  other  cases, 
Crall  V.  Board  of  Directors  of 
Poso  Irr.  Dist.,  87  Cal.  140,  26  Pac. 
797;  Board  of  Directors  of  Mo- 
desto Irr.  Dist.  v.  Tregea,  88  Cal. 
334,  26  Pac.  237;  appeal  dismissed, 
164  U.  S.  179,  41  L.  Ed.  395.  17 
Sup.  Ct.  Rep.  52;  Palmdale  Irr. 
Dist.  V.  Rathke.  91  Cal.  538.  27 
Pac.  783;  Bonds  of  Madera  Irr. 
Dist.,  In  re  Bonds  of,  92  Cal.  29C, 
27  Am.  St.  Rep.  106,  14  L.  R.  A. 
755,  28  Pac.  272;  Rialto  Irr.  Dist. 
V.  Brandon,  103  Cal.  381,  M  Pac. 
484;  Falbrook  Irr.  Dist.  v.  Abila, 
106  Cal.  365,  39  Pac.  793;  Cullen 
V.  Glendora  Water  Co.,  113  Cal. 
503,  39  Pac.  769,  45  Pac.  1047; 
Central  Irr.  Dist..  In  re  Bonds  of, 
117  Cal.  382,  49  Pac.  354;  Stini- 
son   V.    Alessandro   Irr.    Dist.,    135 


663 


f  507 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  II, 


college,*  and  the  like.  The  supreme  court  of  Wisconsin 
say  that  ''whenever  the  thing  denominated  a  status  is  a 
matter  of  public  importance  by  principle  of  common  law, 
or  by  the  letter  or  spirit  of  the  written  law, — such  as  the 
condition  of  marriage,^  citizenship,*^  parentage,  residence, 
legal  settlement,  and  many  other  things  that  might  be 
mentioned, '^ — the  question  in  respect  thereto  is  a  legiti- 
mate matter  for  judicial  determination  in  a  tribunal  hav- 
ing jurisdiction  of  the  res.  Proceedings  of  that  sort  are 
regarded  as  in  rem,  the  same  in  all  respects  as  if  the  thing 
were  of  a  tangible  character.  The  whole  w^orld,  so  to 
speak,  is  regarded  as  a  party.  The  person  directly  affected 
is  deemed  to  be  so  specially  interested  as  to  be  entitled, — 
under  constitutional  guaranties,  as  regards  due  process 
of  law,  the  equal  protection  of  the  laws,  and  the  general 
principles  of  free  government, — to  some  reasonable  op- 
portunit}^  to  be  heard.  "^ 

§  507. English    practice.     Notwithstanding 

the  exceptions  above  noted,  the  prevailing  American  doc- 


Cal.  389,  67  Pac.  496;  People  v. 
Ferris  Irr.  Dist.,  142  Cal.  601,  76 
Pac.  381;  Fogg  v.  Perris  Irr.  Dist., 
154  Cal.  209,  97  Pac.  316;  Nampa 
&  M.  Irr.  Dist.  v.  Brose,  11  Idaho 
474,  83  Pac.  499;  Emmett  Irr. 
Dist.  V.  Shane,  19  Idaho  332,  113 
Pac.  444. 

— The  "issues"  to  be  determined 
in  such  a  proceeding  are  simply 
(1)  the  validity  of  the  organiza- 
tion of  the  district,  (2)  the  valid- 
ity of  the  proceedings  of  the  board 
of  directors  for  the  issuance  of 
bonds;  and  these  issues  are  dis- 
tinct from  subordinate  and  evi- 
dentiary findings  of  the  court. — 
Falbrook  Irr.  Dist.  v.  Abila,  106 
Cal.  365,  39  Pac.  793. 

4  State  ex  rel.  Milwaukee  Med- 
ical College  V.  Chittenden,  127 
Wis.  468,  107  N,  W.  500,  512. 


5  See  discussion  in  1  Elliott's 
General  Practice,  §  245. 

G  See  Spratt  v.  Spratt,  29  U.  S. 
(4  Pet.)  393,  7  L.  Ed.  897. 

On  same  point  see  cases  cited 
and  abstracted  in  2  Rose's  Notes 
on  U.  S.  Reports  917. 

7  See  1  Elliott's  General  Prac- 
tice, §  246. 

s  State  ex  rel.  Milwaukee  Med- 
ical College  V.  Chittenden,  127 
W^is.  468.  107  N.  W.  512,  citing 
Hood  V.  Hood,  110  Mass.  463;  Ross 
V.  Ross,  129  Mass.  243,  37  Am.  Rep. 
321;  McCarthy  v.  Marsh,  5  N.  Y. 
263;  Cabot  v.  Washington,  41  Vt. 
168;  Pittsford  v.  Chittenden,  58  Vt. 
49,  3  Atl.  323;  State  ex  rel.  Kic- 
bush  V.  Hoeflinger,  35  Wis.  393; 
State  ex  rel.  Atkinson  v.  McDon- 
ald, lOS  Wis.  8,  81  Am,  St.  Rep. 
878,  84  N.  W.  171;  Spratt  v.  Spratt, 
29  U.  S.  (4  Pet.)  393,  7  L.  Ed.  897. 


664 


eh.  I.]  DECLARING  RIGHTS,  ETC. — ENGLISH  PRACTICE.  §  507 

trine  is  that  the  duty  and  function  of  the  courts  are  to 
decide  the  rights  of  persons  and  property,  when  the  par- 
ties interested  can  not  agree,  on  a  cause  presented,  and 
a  full  hearing  of  both  parties.  The  supreme  court  of  the 
United  States  has  said  that  any  attempt,  by  a  mere  color- 
able dispute,  to  obtain  the  opinion  of  a  court  upon  a 
question  of  law  which  a  party  desires  to  know  for  his  own 
interest,  or  for  his  o^vn  purposes,  when  there  is  no  real 
or  substantial  controversy  between  the  parties  who  ap- 
pear as  adversaries  to  the  suit,  is  a  reprehensible  abuse 
of  justice  which  the  courts  have  always  treated  as  a  pun- 
ishable contempt  of  court  ;^  and  the  supreme  court  of 
Montana  has  said  that  in  such  a  case  it  would  feel  not 
only  constrained  to  dismiss  an  appeal,  but  also  to  proceed 
against  both  clients  and  counsel  for  contempt.-  And  such 
is  the  view  that  has  been  frequently  expressed  by  the 
American  courts,^  although  some  of  the  cases  hold  insti- 
gating a  fictitious  action  is  not  contempt,  but  obstructing 
justice  merely.^  In  England  a  more  enlightened  practice 
prevails.  In  that  country  the  archaic  conception  of  the 
common  law  regarding  remedial  jurisprudence  was  par- 
tially remedied  in  1852,  when  parliament  amended  the 

iLord    V.    Veasie,    49    U.    S.    (8  523,   556,  130  S.  W.  9;    Meeker  v. 

How.)   251,  12  L.  Ed.  1067.  Straat,  38  Mo.  App.  239;   Haley  v. 

As  to  bringing  of  fictitious  suit  Eureka  County  Bank,  21  Nev.  127. 

to  obtain  opinion  of  court  being  a  ^^  '"  "'  ^-  ^^'^'  "^  P^^-  ^^^  ^^^^^ 

contempt,  see  note,  L.  R.  A.  1915B,  ^°""^^'  ^-   J°^««'  ^1   Pa.   St.   413: 

g„g  Ward  V.  Alsup,  100  Tenn.  619,  46 

S.    W.    573;    Connoly    v.    Cunning- 

2  Carlson  v.  Helena.  City  of.  38  ham,  2  Wash.  Tr.  242,  5  Pac.  473; 
Mont.  561,  101  Pac.  163.  Cleveland   v.  Chamberlain.   66 

3  McAdam  v.  People  ex  rel.  U.  S.  (1  Black)  419,  17  L.  Ed.  93: 
Joslyn,  179  111.  316.  53  N.  E.  1102;  Gardner  v.  Goodyear  Denta!  Vnl- 
Fesler  v.  Brayton,  145  Ind.  71,  32  canite  Co.,  131  U.  S..  p.  ciii,  21 
L.  R.  A.  578.  44  N.  E.  37;  Isenhour  L.  Ed.  141;  Hatfield  v.  Kin.?.  1S4 
V.  State,  157  Ind.  520,  87  Am.  St.  U.  S.  163,  46  L.  Ed.  481.  22  Sii|). 
Rep.  228.  62  N.  E.  40;  State  ex  rel.  Ct.  Rep.  477;  Horn  v.  Kiltita.s 
Hahn  V.  Westport,  City  of,  135  Mo.  County.  112  Fed.   1. 

120,   36   S.   W.   663;    State   ex   rel.  4  Melton   v.   Com.,    160   Ky.   664, 

Chandler    v.    McQuinlin,    229    Mo.      L.  R.  A.  1915B,  689,  170,  S.  VV.  37. 

665 


§  507  CODE  PLEADING  AND  PRACTICE.  [Pt.  H, 

practice  in  the  High  Court  of  Chancery  by  providing, 
among  other  things,  that  '*no  snit  in  said  court  shall  be 
open  to  objection  on  the  ground  that  a  merely  declaratory 
decree  or  order  is  sought  thereby,  and  it  shall  be  lawful 
for  the  court  to  make  binding  declarations  of  right  with- 
out granting  consequential  relief. '  '^  This  was  the  enter- 
ing wedge  of  procedural  reform.  It  applied  to  the  one 
court  only,  and  was  construed  to  relate  to  those  cases  in 
which  consequential  relief  could  be  granted,  only.^  But 
the  Judicature  Act  of  1873  enlarged  the  scope  of  the  re- 
form, and  the  power  of  the  court  thereunder  was  further 
extended  in  1883  by  adding  to  the  provision  above  quoted 
that  'Hhe  court  may  make  binding  declarations  of  right, 
whether  any  consequential  relief  is  or  could  be  claimed  or 
not,""  thus  introducing  an  innovation  more  radical  and 
highly  important  in  its  possibilities  for  good.^  In  1893 
the  doors  of  reform  were  thrown  wider  by  it  being  pro- 
vided that  ''in  any  division  of  the  High  Court  [of  Chan- 
cery], any  person  claiming  to  be  interested  under  a  deed, 
will,  or  other  written  instrument,  may  apply  by  origi- 
nating summons  for  the  determination  of  any  question 
of  construction  arising  under  the  instrument,  and  for  a 
declaration  of  the  rights  of  the  persons  interested."^ 

Immense  advantages  and  possibilities  of  such  a  pro- 
cedural reform  in  this  country  are  too  manifest  on 
thoughtful  consideration  to  require  discussion,  in  the  way 
of  conserving  interests  of  litigants,  protecting  their 
rights,  saving  hazard  and  expense,  preventing  annoying 
delays  and  possible  loss  attendant  thereon,  and  as  tending 
to  lessen  litigation  and  thus  to  reduce  the  arduous  labors 
of  the  courts.  Any  doubting  Thomas  ^vill  have  all  his 
misgivings  swept  aAvay  by  a  thoughtful  perusal  of  recent 
discussions  of  the  subject  in  our  leading  law  journals,**' 

5  15  and  16  Vict.,  ch.  86,  §  50.  8  Ellis    v.    Duke    of    Bedford 

oRooke    V.    Kensington    (1856),       (189^),  1  Ch.  494,  515. 
2  Kay  &  Johns.  753,  761.  9  Rule  1,  Order  54a. 

7  Rule  5,  Order  25.  lo  See  53  American  Law  Review 

C66 


ell.  I.]  DESTRUCTION  OF  PROPERTY,  ETC.  §  508 

and  a  careful  examination  of  tlie  English  Chancery 
Reports  of  the  past  thirty  years,  which  will  show  the 
working  of  such  a  reform  in  actual  practice  and  disclose 
its  many  advantages. 

Not  a  novelty  in  English  judicature.  In  addition  to  the 
exceptions  above  noted,^^  including  the  old  equitable  pro- 
ceeding for  the  interpretation  of  a  trust  and  the  instruc- 
tion of  a  trustee,  there  was  formerly  the  writ  quo  jure, 
which  at  common  law  at  the  instance  of  any  one  who  had 
land  in  which  another  claimed  the  right  of  an  easement 
of  '^coimiion" — a  profit  arising  to  him  from  a  right  to 
feed  or  pasture  his  beasts,  catch  fish,  dig  turf,  cut  wood, 
or  the  like — to  compel  the  latter  to  show  by  what  title  lie 
claimed  such  easement.^-  This  remedy  passed  with  the 
doing  away  with  the  old  common-law  ''real  action." 

In  American  judicature  this  is  a  purely  academic  ques- 
tion, though  a  much-needed  procedural  reform,  and  we 
must  be  content  in  this  place  with  merely  calling  the  atten- 
tion of  the  bench  and  bar  to  the  subject ;  we  can  not  enter 
into  a  discussion  of  its  merits  and  working  in  practice,  as 
shcwm  by  an  analysis  of  the  cases  in  the  English  Chancery 
Reports  for  the  past  thirty  or  more  years. 

^  503.    Destruction  of  property  to  prevent  the 

SPREAD  OF  fire.  luviolablc  as  the  law  regards  the  rights 
of  private  property,  such  private  rights  and  interests  are 
always  subordinated  to  the  general  public  welfare,  on  the 
principle  of  the  maxim,  salus  populi  suprema  est  lex — 
the  good  or  welfare  of  the  people  is  the  supreme  law, 
for  it  is  always  better  to  suffer  a  private  mischief  than 

(March-April  1919),  p.  161;  28  Yale  few  other  cases,  showing  its  work- 
Law  Journal,  pp.  1,  36;  88  Central  ings  in  actual  practice,  will  be 
Law  Journal  6.  found  in  Prof.  Edson  R.  Sunder- 
Summary  of  permanent  benefits  lands  paper  in  88  Cent.  L.  J.  6,  IT. 
of  such  a  procedural  reform  to  ii  See,  ante,  §506. 
litigants,  with  an  analysis  of  the  12  See  Britt.  eh.  59;  Co  well 
cases  in  2  Eng.  Ch.  Reps,  and  a  F.  N.  B.  128  F;  Reg.  Orig.  156b. 

G67 


§508 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  II, 


to  permit  a  public  inconvenience/  on  the  principle  of 
that  other  maxim,  necessitas  inducit  privilegium  quad 
jura  privata — necessity  carries  with  it  a  privilege  as  to 
private  rights.  Hence  it  is  the  well-established  doctrine 
that,  by  common-law  power,  the  authorities  of  a  munici- 
pality may  cause  houses  and  other  property  to  be  blowai 
up  or  destroyed  for  the  purpose  of  stopping,  or  of  pre- 
venting the  spread  of,  a  conflagration,  and  neither  the 
municipality  nor  the  authorities  causing  such  destruction 
are  liable  in  damages  to  the  owner  of  the  property  thus 
destroyed,- — although  this  doctrine  seems  to  have  been 


1  Respublica  v.  Sparhawk,  1  U.  S. 
(1  Dob.)  357,  1  L.  Ed.  174;  Thrope 
V.  Rutland  &  B.  R.  Co.,  27  Vt.  156. 

-•  Surocco  V.  Geary,  3  Cal.  69,  58 
Am.  Dec.  385;  Corwell  v.  Ernrie, 
2  Ind.  35;  Field  v.  Des  Moines, 
City  of,  39  Iowa  575,  578,  583,  587, 
18  Am.  Rep.  46,  49,  53,  57;  Mc- 
Donald V.  Red  Wing,  City  of,  13 
Minn.  38,  41,  42;  American  Print 
Works  V.  Lawrence,  21  N.  J.  L. 
(1  Zab.)  248;  American  Print 
Works  V.  Lawrence,  23  N.  J.  L. 
(3  Zab.)  590,  57  Am.  Dec.  420; 
Russell  V.  New  York,  City  of,  2 
Den.  (N.  Y.)  461;  Struve  v.  Droge, 
10  Abb.  N.  C.  (N.  Y.)  142,  62  How. 
Pr.  233;  Keller  v.  Corpus  Christi, 
50  Tex.  614,  32  Am.  Rep.  613; 
Thrope  v.  Bretland  &  B.  R.  Co.,  27 
vt.  156;  The  Binton,  13  C.  C.  A. 
331,  26  U.  S.  App.  486,  66  Fed.  71. 

See  notes,  47  Am.  Dec.  207;  58 
Am.  Dec.  588;  Ann.  Cas.  1913C, 
599;   19  L.  R.  A.  197. 

Destruction  by  explosion  of  gun 
powder  of  insured  building,  by  mu- 
nicipal authorities,  to  prevent  the 
spreading  of  a  fire  that  would  have 
consumed  it  is  a  loss  by  fire  within 
the  meaning  of  the  policy. — City 
Pire  Ins.  Co.  v.  Corliss,  21  Wend. 
(N.  Y.)  367,  34  Am.  Dec.  258.     See 


Pentz  V.  Aetna  Fire  Ins.  Co.,  9 
Paige  Ch.  (N.  Y.)  568,  reversing 
3  Edw.  Ch.  (N.  Y.)  341;  Babcock 
V.  Montgomery  County  Mut.  Ins. 
Co.,  6  Barb.  (N.  Y.)  637,  640;  af- 
firmed, 4  N.  Y.  326;  Tilton  v.  Ham- 
ilton Fire  Ins.  Co.,  14  N.  Y.  Super. 
Ct.  Rep.  (1  Bosw.)  367,  14  How. 
Pr.  363. 

Loss  of  insured  building  partly 
by  explosion  of  gun  powder  and 
partly  by  conflagration,  is  a  loss 
by  fire  within  the  meaning  of  an 
insurance  p  o  1  i  c  y. — Scripture  v. 
Lowell  Mut.  Fire  Ins.  Co.,  64  Mass. 
(10  Cush.)  356,  57  Am.  Dec.  IIL 

Immunity  does  not  extend  to 
firemen  of  a  private  fire  company 
acting  negligently. — Bates  v.  Wor- 
cester Protective  Department,  177 
Mass.  130,  135,  58  N.  E.  274. 

Necessity  is  the  only  ground  for 
exemption  in  such  cases;  property 
destroyed,  in  such  cases,  without 
any  apparent  and  reasonable  nec- 
essity, the  doers  of  the  act  are  re- 
sponsible in  damages. — Field  v. 
Des  Moines,  City  of,  39  Iowa  575, 
18  Am.  Rep.  46.  See  Dunbar  v. 
Alcalde  Ayunlomiento  of  San  Fran- 
cisco, 1  Cal.  355,  452;  Taylor  v. 
Plymouth,  City  of,  49  Mass.  (8 
Mete.)    462,  465;    New  York,  City 


CCS 


Ch.  I.]  LAWFUL  RIGHTS  IN  USE  OF  PROPERTY.  §  500 

questioned,^ — and  this  rule  has  prevailed  in  English  law 
from  an  early  date.''  Destruction  of  property  in  such  a 
case  is  not  regarded  as  a  public  taking  without  a  consti- 
tutional provision  guaranteeing  compensation;^  but  in 
the  case  where  a  statute  conferring  upon  public  authori- 
ties the  power  of  destruction  of  property  in  such  cases 
and  for  s^ich  a  purpose  provides  a  compensation  for  the 
property  destroyed,  such  a  destruction  is  regarded  as  a 
public  taking  under  the  power  of  eminent  domain.^ 

Private  persons  have  not  the  privilege  in  this  regard 
extended  to  municipalities,  and  an  individual  may  not, 
in  order  to  save  his  o\^ti  property  from  destruction,  de- 
stroy the  property  of  another,  however  urgent  the  neces- 
sity, without  subjecting  himself  to  liability  for  the  dam- 
ages caused  to  the  owner  by  the  destruction  of  such 
other's  property^ 

§  509.  Exercise  of  lawful  rights  in  use  of  prop- 
erty. Although  a  lawful  act  in  the  use  of  one's  own 
property  may  become  unlawful  when  it  damages  another 
or  his  property, — e.  g.,  the  use  of  dangerous  explosives, 

of,  V.  Lord,  17  Wend.  (N.  Y.)  285;  This   passage   in   the  opinion  is 

affirmed,     18     Wend.     126,     132-3;  regarded  as  obiter,  and  is  not  in 

Governor  and  Company  of  British  harmony  with  the  balance  of  the 

Cast  Plate  Mfg.  Co.  v.  Meredith,  opinion,    which    applies    and    en- 

4  Dumf    &  E    (4  T    R  )   794    797  forces  the  common-law  doctrine. 

100  Eng.  Repr.  1306.'      '           '         '  4  Case  of  the  Prerogative  of  tho 

King  in  Saltpeter,  12  Co.  12,  13,  77 

See,  also,  cases  cited  in  first  part  ^.^^     ^^^^     ^294,    1295;     Mouse's 

of  this  footnote.  Case,    12    Co.    03,    77    Eng.    Repr. 

3  "Unless    the    corporation    had  1341;  Maleverer  v.  Spinke,  1  Dyer 

authority  conferred  upon  it  by  the  35b,  36a,  73  Eng.  Repr.  79,  80. 

statute  defining  its  powers,  to  de-  5  Surocco  v.  Geary,  3  Cal.  69,  58 

stroy  buildings  or  other  property  Am.    Dec.    385;    Field    v.    Des» 

for  the   purpose  of  arresting  the  Moines,  City  of,  39  Iowa  575;    18 

progress  of  a  fire,    .     .     .     it  could  Am.    Rep.    46;    McDonald    v.    Red 

not     exercise     such     power,     and  Wing,  City  of,  13  Minn.  38. 

would  not  be  liable  for  the  acts  of  c  Hale  v.  Lawrence,  21  N.  J.  L. 

its  officers  which  it  had  no  power  (1  Zab.)  714,  47  Am.  Dec.  190. 

to  autnorize." — Field  v.  Des  Moines,  7  Turner    v.    Tuolumne    County 

City  of,  39  Iowa  575,  18  Am.  Rep.  Water  Co.,  25  Cal.  397,  1  Morr.  iVlin. 

46,  Rep.  107. 

CG9 


^509 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  ir, 


in  blasting  rock  or  otherwise,  near  the  property  of  an- 
other;^ yet  the  general  rule  of  law  is  that  where  one  uses 
his  own  property  in  a  law^ful  and  reasonable  manner,  any 
injury  resulting  to  another  from  such  use  is  damnani 
absque  injuria,^  although  the  law  obligates  owners  to  so 
use  their  property  and  exercise  their  rights  as  not  to 
interfere  with  the  rights  of  others,^  because  a  person  can 


1  Carlton  v.  Onderdonk,  69  Cal. 
155,  58  Am.  Rep.  556,  10  Pac.  395; 
Fltz  Simmons  &  C.  Co.  v.  Braun, 
94  111.  App.  533;  Probst  v.  Hines- 
ley,  133  Ky.  64,  117  S.  W.  389; 
Longtin  v.  Persell,  30  Mont.  306, 
104  Am.  St.  Rep.  723,  2  Ann.  Cas. 
19S.  65  L.  R.  A.  655,  76  Pac.  699; 
Blackford  v.  Herman  Construction 
Co.,  132  Mo.  App.  157,  112  S.  W. 
287;  Gossett  v.  Southern  R.  Co., 
115  Tenn.  376,  12  Am.  St.  Rep.  846, 
1  L.  R.  A.  (N.  S.)  97,  89  S.  W.  737; 
Hord  V.  Holston  River  R.  Co.,  122 
Tenn.  407,  135  Am.  St.  Rep.  878,  19 
Ann.  Cas.  331,  123  S.  W.  637;  Sim- 
mons V.  McConnell,  86  Va.  494,  10 
S.  E.  838;  Cary  Bros.  v.  Morrison, 
03  C.  C.  A.  267,  12  Fed.  177,  65 
L.  R.  A.  659. 

Injury  to  cistern  on  adjacent 
land  by  operation  of  quarry  in 
thinly  populated  section,  held  not 
actionable  in  Thurmond  v.  Ash 
Grove  White  Line  Assoc,  125  Mo. 
App.  77,  102  S.  W.  617. 

i;  Esmond  v.  Chew,  15  Cal.  137, 
143,  5  Morr.  Min.  Rep.  175;  Lin- 
coln v.  Rodgers,  1  Mont.  217,  221. 

As  to  damage  without  wrong, 
see,  ante,  §  6. 

3  Donnelly  v.  Hufschmidt,  79  Cal. 
74,  21  Pac.  546;  Rader  v.  Davis, 
154  Iowa  313,  38  L.  R.  A.  (N.  S.) 
134,  134  N.  W.  849. 

Defective  premises  maintained 
by  landlord  he  is  liable  to  tenant 
cr  to  employee  of  tenant  for  in- 


juries.— Davis  V.  Pacific  Power 
Co.,  107  Cal.  563,  48  Am.  St.  Rep. 
156,  40  Pac.  950;  Poor  v.  Sears, 
154  Mass.  539,  26  Am.  St.  Rep.  272, 
28  N.  E.  1046. 

See  notes  15  Am.  St.  Rep.  201; 
46  L.  R.  A.  86. 

Mine  locator,  by  custom  or 
otherwise,  can  not  allow  tailings 
to  run  free  in  the  gulch  and  thus 
rendering  valueless  other  mining 
claims  filed  on  subsequently,  the 
prior  location  not  being  within  the 
maxim  qui  prior  est  tempore,  po- 
tior est  in  jure — he  who  is  before 
in  time  is  the  better  in  right. — 
Lincoln  v.  Rodgers,  1  Mont.  217, 
221.  See  Logan  v.  Driscoll.  19  Cal. 
626,  81  Am.  Dec.  91;  Fitzpatrick  v. 
Montgomery,  20  Mont.  187,  63  Am. 
St.  Rep.  622,  50  Pac.  418;  Chees- 
man  v.  Hale,  31  Mont.  583,  68 
L,  R.  A.  410,  79  Pac.  255;  Blair  v 
Boswell,  37  Ore.  170,  61  Pac.  342: 
Carson  v.  Hayes,  39  Ore.  106,  65 
Pac.  817. 

— Flume  from  mine  in  bed  of 
stream  depositing  tailings  on  ad- 
joining land,  mine  owner  liable  in 
damages  or  to  an  injunction. — Es- 
mond V.  Chew,  15  Cal.  137,  142; 
Carson  v.  Hayes,  39  Ore.  97,  106, 
65  Pac.  814. 

Obstructing  pathway  party  li- 
able.— Donnelly  v.  Hufschmidt,  79 
Cal.  74,  75,  21  Pac.  546. 

Seepage  from  irrigating  ditch 
allowed,  owner  of  ditch  liable  in 


G70 


ch.  I.] 


EXERCISING  RIGHTS — BAD  INTENT. 


§510 


not  be  heard  to  complain  of  that  which  another  has  a 
lawful  right  to  do.^  Thus,  no  action  will  lie  to  recover 
damages  because  of  the  decrease  in  value  of  property 
caused  by  the  erection  of  a  wooden  building  on  adjoining 
land  by  the  owner  of  such  land.^ 


^510. 


Exercise  of  rights  with  bad  intent.    We 


have  already  seen  that  acts  done  with  consent  are  not 
actionable/  volenti  non  fit  injuria — an  injury  is  not  done 
to  the  willing,^  whatever  may  be  the  motive  or  intent;^ 
and  an  act  which  does  not  amount  to  a  legal  injury, — 
i.  e.,  one  in  itself  lawful, — can  not  be  actionable  because 
it  is  done  with  a  bad  or  malicious  motive  or  intent,  be- 
cause, while  a  malicious  motive  makes  a  bad  act  worse, 
it  can  not  make  that  wrong  which,  in  its  essence,  is  law- 
ful.'* Thus,  a  common  carrier  has  a  common-law  right, 
for  the  purpose  of  injuring  a  consignee,  to  subject  his 


damages  for  injury  suffered  there- 
from.— Fleming  v.  Lockwood,  36 
Mont.  387,  122  Am.  St.  Rep.  375, 
14  L.  R.  A.  (N.  S.)  628,  92  Pac. 
963. 

4  Boyson  v.  Thorn,  98  Cal.  578, 
583,  21  L.  R.  A.  233,  33  Pac.  492. 

5  McClaskey  v.  Kerling,  76  Cal. 
512,  18  Pac.  433. 

1  See,  ante,  §  498. 

2  Id.;  Meyer  v.  Kohn,  29  Cal. 
280;  Frost  v.  Witter,  132  Cal.  421, 
84  Am.  St.  Rep.  53,  64  Pac.  705. 

3  Raycroft  v.  Taynor,  68  Vt.  219, 
54  Am.  St.  Rep.  882,  33  L.  R.  A. 
225,  35  Atl.  53. 

Motives  of  acts  of  men  is  not  a 
concern  of  the  law,  so  long  as  the 
acts  themselves  are  lawful,  and 
the  injuries  which  result  from  the 
exercise  of  a  lawful  right  are 
damnum  absque  injuria. — Dis.  op. 
of  Thayer,  J.,  in  Shaver  v.  Heller 
&  Merz  Co.,  48  C.  C.  A.  48,  108 
Fed.  821,  65  L.  R.  A.  878. 

See,  ante,  §§6,  509. 


See,  also,  note  62  L.  R.  A.  673- 
728. 

i  Sparks  v.  McCreary,  165  Ala. 
388,  22  L.  R.  A.  (N.  S.)  1224,  47 
So.  334;  Bryson  v.  Thorn,  98  Cal. 
578,  21  L.  R.  A.  233,  33  Pac.  492; 
Parkinson  Co.  v.  Building  Trades 
Council,  154  Cal.  581,  21  L.  R.  A. 
(N.  S.)  550,  98  Pac.  1027;  Pierce 
V.  Stablemen's  Union,  156  Cal.  70, 
103  Pac.  324;  Union  Labor  Hos- 
pital Assoc.  V.  Vance  Red  Wood 
Lumber  Co.,  158  Cal.  551,  33 
L.  R.  A.  (N.  S.)  1034,  112  Pac.  886; 
People  V.  Schmitz,  7  Cal.  App.  371, 
94  Pac.  421  (decision  in  this  case 
is  very  questionable,  but  is  cited 
for  what  it  is  worth) ;  Arnold  v. 
Moffitt,  30  R.  I.  319,  75  Atl.  506; 
Gamble-Robinson  Commission  Co. 
V.  Chicago  &  N.  W.  R.  Co.,  94 
C.  C.  A.  217,  168  Fed.  161,  21 
L.  R.  A.  (N.  S.)  982. 

As    to    effect    of    motive    with 
which     act     done,     see     note     62 
L.   R.  A.  673-728. 
71 


§  510  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

business  to  disadvantages  over  competitors,  so  long  as 
the  exactions  are  neither  undue  nor  unreasonable, — e.  g., 
may  demand  the  payment  in  advance  of  freight  charges 
where  goods  are  consigned  to  one  person,  and  may  ex- 
tend a  credit  therefor  where  consigiied  to  another  and  a 
competitor  in  the  same  line  of  business.^  Where  work- 
men have  a  right  to  quit  work,  even  though  they  do  so 
with  the  intent  to  injure  their  employer,  their  motive  in 
quitting  work  can  not  be  considered  by  the  court.^  And 
a  wholesale  merchant  does  not  subject  himself  to  a 
liability  in  an  action  at  law  for  damages,  or  to  a  suit 
restrictive  in  equity,  in  favor  of  a  manufacturer,  by  cir- 
cularizing the  retail  trade,  offering  a  quantity  of  the 
manufacturer's  product,  which  he  owns  and  has  on  hand, 
at  a  ''cut  price,"  for  the  purpose  of  injuring  such  manu- 
facturer and  destrojdng  the  latter 's  trade,  and  of  de- 
pressing the  price  of  his  product  on  the  market;'^  but 
advertising  and  selling  the  goods  of  one  manufacturer  as 
the  product  of  another  manufacturer,  a  competitor  in  the 
same  line  of  business,  is  unfair  competition  and  an  injury 
to  the  trade-name  which  vnll  be  enjoined.^  Legitimate 
competition  in  business,  by  fair  and  lawful  means,  by  a 
stronger  competitor,  affords  no  ground  of  action  for  dam- 
ages at  law  or  an  injunction  in  equity,  even  though  the 
business  of  the  weaker  competitor  is  injured,  or  in  fact 
destroyed  or  ruined,  by  the  competitive  strife.® 

o  Gamble-Robinson  Commission  L.  R.  A.  878  (Thaj'er,  J.,  dissent- 
Co.  V.  Chicago  &  N.  W.  R.  Co.,  94  ing).  See  Eureka  Fire  Hose  Co. 
C.  C.  A.  217,  168  Fed.  161,  21  v.  Eureka  Rubber  Mfg.  Co.,  69 
L.  R.  A.  (N.  S.)  982.  N.  J.  Eq.  168,  60  Atl.  561;  Johnson 
See  note  21  L.  R.  A.  (N.  S.)  982.  v.  Seaburj-,  69  N.  J.  Eq.  703,  61 
fi  Parkinson  Co.  v.  Building  Atl.  5;  Reynolds  Tobacco  Co., 
Trades  Council,  154  Cal.  581,  594,  R.  J.,  v.  Allen  Bros.  Tobacco  Co., 
21  L.  R.  A.  (N.  S.)  550,  98  Pac.  151  Fed.  829;  William  Wrigley. 
1032.  Jr.,  Co.  V.  Grove  Co.,  161  Fed.  885. 

7  Passaic  Print  Works  v.  Ely  &  As  to  protection  of  trade-name, 
Walker  Dry-Goods  Co.,  44  C.  C.  A.  even  where  there  is  no  valid 
426,  105  Fed.  163,  62  L.  R.  A.  673.  trade-mark,  see  note  65   L.   R.  A. 

8  Shaver  v.  Heller  &  Metz  Co.,  878. 

48   C.   C.  A.   48,   103   Fed.   821,   65  9  Schonwald    v.    R  a  gains,    ?.2 

G72 


I 


ch.  I.]  FRAUD  WITHOUT  INJURY.  §  511 

Doctrine  founded  on  principle  expressed  in  tlie  old 
common-law  maxim,  ex  dolo  malo,  non  oritur  actio — out 
of  fraud  no  action  arises;  fraud  never  gives  a  right  of 
action, ^^  first  recognized  and  approved  in  the  English  law 
by  Lord  Mansfield.^^  Thus,  no  contract  can  arise  out  of 
a  fraud ;  and  where  an  action  is  brought  upon  a  supposed 
contract,  it  can  be  defeated  by  showing  that  it  arises 
from  fraud. ^- 

<§  511.    Fraud    without    injury.     From   what   is 

said  in  the  preceding  section  it  is  manifest  that  fraud 
without  injury  confers  no  right  of  action  for  damages 
or  other  relief.^  Thus,  where  an  agreement  was  entered 
into  between  contractors  and  property-owners  for  a  pub- 
lic improvement  in  a  municipal  corporation,  the  owners 
Avaiving  their  right  under  the  law  to  elect  to  take  the 
contract,  in  consideration  of  which  the  contractors  agreed 
to  allow  such  property-owners  a  reduction  of  twenty-five 
per  cent  upon  their  assessments,  this  mil  not  afford 
ground  for  an  action  or  for  relief  from  their  assessments, 
to  other  property-owners  not  invited  to  enter  into  said 
contract,  when  it  is  apparent  that  such  other  property- 
owners  could  not  have  participated  in  any  profits  if  the 
contract  for  doing  the  work  had  been  let  to  the  property- 
owners,  under  the  provisions  of  the  statute,  at  the  con- 
tract price,  and  that  the  assessment  upon  the  lots  of  such 

Okla.  230,  39  L.  R.  A.  (N.  S.)  858,  tation,    untrue    statements,    intent 

122  Pac.  203.     See  Farmers'  Loan  and    knowledge    or    belief   of    the 

&  Trust  Co.  V.   Sioux  Falls,  City  party,  materiality  of  misrepresen- 

of,  131  Fed.  900.  tations,  and  jurisdiction,  see  Pom- 

10  Valentine  v.  Stewart,  15  Cal.  eroy's  Eq.  Jurisp.  (4tli  ed.),  §§872- 
387,  405;   Bornheimer  v.  Baldwin,  891. 

42    Cal.    34;    Benicia   Agricultural  As  to   constructive  fraud,   what 

Works  V.  Estes,  3  Cal.  Unrep.  855,  constitutes,  the  essential  elements 

32  Pac.  940.  and  classes  of,  and  equitable  jur- 

11  Holeman  v.  Johnson,  alias  isdiction  in  cases  of  illegal  con- 
Newland,  1  Cowp.  341-343,  98  Eng.  tracts,  see  Pomeroy's  Eq.  Jurisp. 
Repr.  1120-1.  (4th  ed.),  §§922-974. 

12  See  Broom's  Maxims,  349.  i  Duncan    v.    Ramish,    142    Cal. 
As  to  actual  fraud,  misrepresen-      GSG,  695,  76  Pac.  GGl. 

I  Code  PI.  and  Pr.— 43  C73 


§  512  CODE  PLEADING   AND   PRACTICE.  [Pt.  II, 

property-o\^^lers  must  have  been  the  same  if  the  contract 
had  been  let  to  the  property-owners. ^ 

§  512.    Illegal  ok  immoral  contracts.    Illegal  and 

immoral  contracts  have  ever  been  under  the  ban  of  the 
law;  ex  turpi  contractus  actio  non  oritur — from  an  im- 
moral, or  iniquitous  contract,  an  action  does  not  arise. 
That  is,  all  contracts  founded  upon  an  illegal  or  an  im- 
moral consideration  can  not  be  enforced  by  an  action ; 
and  this  was  the  doctrine  under  the  civil  law,^  as  well  as 
at  the  common  law,-  and  the  courts  will  not  lend  their  aid 
to  one  who  founds  his  cause  of  action  upon  an  illegal  or 
an  immoral  transaction  or  contract,^  particularly  where 
the  parties  are  in  equal  guilt.^  All  contracts  which  have 
for  their  object  anything  repugnant  to  justice,  or  which 
are  against  the  general  policy  of  the  common  law,  or  are 
contrary  to  the  pro\dsions  of  any  statute,  are  under  the 
ban  of  the  above  principle.^  Any  instrument  which  is 
not  prima  facie  valid,  but  which  exhibits  on  its  face  its 
own  invalidity,  can  not  be  made  the  basis  of  an  action.'' 
But  where  there  is  a  valid  demand  independent  of  the 
illegal  or  immoral  transaction  or  contract,  or  the  de- 
fendant had  no  concern  in  such  illegal  or  immoral  trans- 
action or  contract,'^  the  demand  may  be  sued  upon,  not- 
withstanding the  connnission  of  illegal  acts  during  the 
course  of  the  business  out  of  which  the  demand  grew.* 

2  Id.  ^  Hinnen    v.    Newman,    .35    Kan. 

1  Dig.  2,  14,  27,  4.  709,  12  Pac.  144. 

2  Broom's  Maxims  350;  2  Kents.  5  Ainsworth  v.  Miller,  20  Kan. 
Com.  466;  Story  on  Agency,  §  195;  220;  State  v.  Buffalo,  City  of,  2 
1  Selwyn's  N.  P.  63.  Hill  (N.  Y.)  434,  437. 

3  Hinnen  v.  Newman,  35  Kan.  ^^  ,  _  ,  „„  ^  ,  ,r,. 
_„„.„„  ...  _.  ,  eWelton  v.  Palmer,  39  Cal.  456. 
709,     12     Pac.     144;     Desbrow     v. 

Creamery   Package   Mfg.   Co.,    110  'Miller    &    Lux    v.    Enterprise 

Minn.   237,  125  N.  W.  115;    Chap-  Canal   &   Land   Co.,   142   Cal.   208, 

man  v.  Meyers,  84   Neb.   368,  121  100  Am.  St.  Rep.  115,  75  Pac.  770. 

N.  W.   245;    Connolly  v.  Cunning-  s  Disbrow  v.  Creamery  Package 

ham,  2  Wash.  Tr.  242,  251,  5  Pac.  Mfg.  Co.,  110  Minn.  237,  125  N.  W. 

473,  477.  115. 

674 


m 


ch.  I.] 


INCLUDING  BREACH  OF  CONTRACT. 


§513 


§  513. 


Inducing  breach  of  contract.     The  deci- 


sions are  not  harmonious  upon  the  question  whether  a 
party  inducing  or  procuring  another  to  breach  his  con- 
tract with  a  third  person  is  liable  in  a  civil  action  for  dam- 
ages to  such  third  person;  but  the  better  doctrine,  on 
fundamental  principle,  as  well  as  the  decided  weight  of 
authority,  is  to  the  effect  that  he  is  liable  to  respond  in 
such  damages  as  the  injured  party  can  establish.^     The 


1  See,  among  other  cases:  ALA. 
— Tennessee  Coal  &  Iron  R.  Co.  v. 
Kelly,  163  Ala.  353,  50  So.  1008. 
ARK.— Mohoney  v.  Roberts,  86 
Ark.  139,  110  S.  W.  225.  GA.— 
Southern  R.  Co.  v.  Chambers,  126 
Ga.  407,  7  L.  R.  A.  (N.  S.)  928,  55 
S.  E.  37.  ILL. — Doremus  v.  Hen 
nessy,  176  111.  608,  68  Am.  St.  Rep 
203,  43  L.  R.  A.  797,  54  N.  E.  524; 
London  Guarantee  &  Accident  Ins 
Co.  V.  Horn,  206  111.  504,  99  Am.  St 
Rep.  185,  69  N.  E.  526;  Morehouse 
V.  Terrill,  111  111.  App.  462;  Fidel 
ity  &  C.  Co.  V.  Gibson,  135  111 
App.  298;  Illinois  Steel  Co.  v 
Brenshall,  141  111.  App.  44.  ME.— 
Perkins  v.  Pendleton,  90  Me.  175, 
60  Am.  St.  Rep.  252,  38  Atl.  96. 
MD.— Gore  v.  Condon,  87  Md.  368, 
739,  67  Am.  St.  Rep.  352,  40  L.  R.  A. 
382,  39  Atl.  1042;  Knickerbocker 
Ice  Co.  V.  Gardiner  Dairy  Co.,  107 
Md.  563,  16  L.  R.  A.  (N.  S.)  746, 
753,  69  Atl.  405.  MASS.— Berry  v. 
Donovan,  188  Mass.  361,  108  Am. 
St.  Rep.  499,  33  Ann.  Gas.  738,  5 
L.  R.  A.  (N.  S.)  905,  74  N.  E.  603; 
Willcutt  &  Sons  Co.,  L.  D.,  v. 
Driscoll  (dis.  op.),  200  Mass.  129, 
23  L.  R.  A.  (N.  S.)  1248,  85  N.  E. 
897.  MISS.— Globe  &  Rutgers  Fire 
Ins.  Co.  V.  Firemen's  Fund  Ins. 
Co.,  97  Miss.  148,  29  L.  R.  A.  (N.  S.) 
873,  52  So.  454.  N.  C— Jones  v. 
Stanley,  76  N.  C.  355.  OKLA.— 
.^"honwald    v.    Ragains,    32    Okla. 


239,  39  L.  R.  A.  (N.  S.)  862,  122 
Pac.  203.  TEX.— Raymond  v.  Yar- 
rington,  96  Tex.  443,  97  Am.  St. 
Rep.  914,  62  L.  R.  A.  962,  72  S.  W. 
580,  73  S.  W.  800;  Brown  Hard- 
ware Co.,  J.  S.,  V.  Indiana  Stove 
Works,  96  Tex.  457,  73  S.  W.  800; 
Lytle  V.  Galveston,  H.  &  S.  A.  R. 
Co.,  100  Tex.  299,  10  L.  R.  A. 
(N.  S.)  440,  SO  S.  W.  396.  W.  VA.— 
West  Virginia  Transp.  Co.  v.  Stan- 
dard Oil  Co.,  50  W.  Va.  611,  88 
Am.  St.  Rep.  895,  56  L.  R.  A.  804, 
40  S.  E.  591 ,  Thacker  Coal  &  Coke 
Co.  v.  Burke,  59  W.  Va.  253,  261, 
8  Ann.  Gas.  885,  5  L.  R.  A.  (N.  S.) 
1091,  1102,  53  S.  E.  161.  FED.— 
Angle  v.  Chicago,  St.  P.,  M.  &  O. 
R.  Co.,  151  U.  S.  1,  38  L.  Ed.  55, 
14  Sup.  Ct.  Rep.  240;  Louisville  & 
N.  R.  Co.  v.  Bitterman,  75  C.  C.  A. 
192,  144  Fed.  45;  Chesapeake  & 
O.  Coal  Agency  Co.  v.  Fire  Creek 
Coal  &  Coke  Co.,  119  Fed.  947. 
ENG.— Lumley  v.  Gye,  2  El.  &  Bl. 
216,  75  Eng.  C.  L.  216,  118  Eng. 
Repr.  749;  Bowen  v.  Hall,  L.  R.  6 
Q.  B.  Div.  333. 

See,  also,  notes  97  Am.  St.  Rep. 
927;  8  Ann.  Gas.  889;  21  L.  R.  A. 
233;  5  L.  R.  A.  (N.  S.)  1091-1100; 
16  L.  R.  A.  (N.  S.)  746;  27  Eng. 
Rul.  Gas.  103-129;  1  Brit.  Rul.  Gas. 
245-282. 

Procuring  discharge  of  employee 
not  engaged  for  any  definite  time, 
by   threatening  to   terminate  con- 


675 


§  514  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

same  is  true  of  a  corrupt  combination  to  injure  a  person 
in  his  business  or  trade  or  employment  by  inducing  em- 
ployers to  break  their  contract  of  employment,  or  to  in- 
duce an  employee  to  refuse  to  remain  longer  in  the 
employment  of  his  master ;-  but  a  civil  action  will  not  lie 
for  conspiracy  to  do  that  which  the  parties  may  law- 
fully do.^ 

§  514. California    doctrine.     The    rule    as 

established  by  the  decisions  in  California  is  that  no 
action  lies  against  one  who,  from  malicious  motives,  but 
without  violence,  threats,  fraud,  or  benefit  to  himself, 
induces  or  procures  another  to  violate  his  contract,  where 
that  contract  involves  a  personal  relation  only.^  The  same 
principle  has  been  applied  in  Kentucky.^  Where  the 
contract  procured  to  be  broken  is  one  other  than  that  of 
personal  relation,  the  California  courts  hold  that  no 
action  will  lie  against  the  person  causing,  inducing  or 
procuring  a  breach  thereof,  on  the  theory  that  if  any  loss 
or  damage  is  suffered  by  the  breach,  the  party  injured 
may  be  compensated  in  an  action  against  the  person 

tract  between  self  and  emplo.ver,  797,  54  N.  E.  524;    Quinn  v.  Lea- 

which  he  had  a  right  to  terminate  tham    (1901),  A.   C.   495,   70  L.  J. 

at  any  time,  not  ground  for  action  P.  C.  76,  27   Eng.   Rul.  Cas.  66,  1 

by     discharged     employee.  —  Ray-  Brit.  Rul.  Cas.  197. 
croft    V.    Tayntor,    68    Vt.    219,    54  As  to  conspiracy  of  trade-union 

Am.  St.  Rep.  882,  33  L.  R.  A.  225,  to  procure  discharge  of  non-union 

35  Atl.  33.  men,  see  notes  54  L.  R.  A.  640,  63 

— Improper   or   unlawful    means  L.  R.  A.  534,  1  Brit.  Rul.  Cas.  245. 

employed  to  procure  discharge  of  282. 

employee,  party  liable  in  damages,  3  See,  ante,  §  510;   Grand  Lodge 

although  the  discharging  employer  Order    of    Sons    of    Herman    v. 

violated  no  legal  right  in  making  Schultze,  36  Tex.  Civ.  App.  334,  81 

the  discharge. — Perkins  v.  Pendle-  S.  W.  241. 

ton,  90  Me.  175,  60  Am.  St.   Rep.  i  Boyson  v.  Thorn,  98  Cal.  580, 

252,  38  Atl.  96.  21  L.  R.  A.  233,  33  Pac.  492. 

2  Employing    Printers'    Club    v.  2  Bourlier  Bros.  v.  Macauley,  91 

Doctor   Blosser   Co.,   122   Ga.   509,  Ky.  135,  11  L.  R.  A.  550,  15  S.  W. 

106  Am.  St.  Rep.  137,  2  Ann.  Cas.  60. 

694,  69  L.  R.  A.  90,  50  S.  E.  353;  Compare:   Lumley  v.  Gye,  2  EL 

Doremus  v.  Hennessy,  176  111.  608,  &  Bl.  216,  75  Eng.  C.  L.  216,  118 

68   Am.  St.   Rep.  203,  43   L.   R.   A.  Eng.  Repr.  749. 

676 


eh.  I.]  PUBLIC  INJURY — PERJURY.  §§  515-517 

breaching  the  contract,  and  that  the  law  presumes  that  in 
such  an  action  the  injured  party  will  recover  full  com- 
pensation and  indemnity.^ 

§  515.    Procuring    payment    to    self    of    money 

KNOWN  TO  BELONG  TO  ANOTHER.  lu  thosc  cases  whcrc  a 
person  wrongfully  procures  to  be  paid  to  himself  money 
which  he  knows  belongs  rightfully  to  another,  the  party 
rightfully  entitled  to  the  money  may  maintain  an  action 
against  such  person,  for  money  had  and  received,  to  re- 
cover the  same,  even  though  such  wrongful  payment  does 
not  destroy  the  right  of  the  party  rightfully  entitled  to 
maintain  an  action  against  the  debtor  to  recover  the 
same.^ 

§  516.    Public  injury.    A  private  person  may  not 

recover  damages  for  a  public  injury ;  it  is  for  the  public 
prosecutor  to  vindicate  wrongs  to  the  community  or  the 
public ;  a  private  person  is  not  the  medium  through  which 
these  rights  are  to  be  asserted  or  maintained.  Conse- 
quently, where  damages  are  laid  professedly  for  the  bene- 
fit of  the  public,  as  a  penalty  to  secure,  by  force  of  the 
example,  future  safety  for  the  public,  in  an  action  by  an 
individual  to  recover  damages  from  the  owners  of  a 
stage-coach  for  injuries  sustained  by  reason  of  the  up- 
setting of  the  coach  caused  by  negligence  in  piling  lug- 
gage on  the  roof  thereof  and  making  it  top-heavy,  he  can 
not  be  permitted  to  recover  such  penalty  or  exemplary 
damages.^ 

§  517.    Perjury  and  subornation  of  perjury'.  The 

fact  that  a  person  swore  falsely  against  another  in  a  civil 
suit,  and  upon  such  false  and  perjured  testimony  a  judg- 
ment was  rendered  against  such  other  person,  does  not 

3  Burkett  v.  Griffith,  90  Cal.  532,  See    discussion    and    authorities 

25   Am.  St.   Rep.   151,   13   L.   R.  A.  in  note  Ann,  Cas.  1918D,  245. 

707,  27  Pac.  527.  i  Wardrobe  v.   California  Stage 

1  Heywood    v.    Northern    Assur-  Co.,  7  Cal.  118,  68  Am.  Dec.  231. 
ance  Co.,  133  Minn.  360,  Ann.  Cas. 
1910D,  241,  158  N.  W.  632. 

677 


§  518  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

raise  a  cause  of  action  for  damages  in  favor  of  such  in- 
jured person  against  such  perjured  witness,^  and  this 
has  been  the  rule  of  law  since  an  early  time ;-  likewise  it 
has  been  held  that  suborning  a  witness  to  swear  falsely 
against  a  person  in  a  criminal  prosecution,  does  not  sub- 
ject the  person  swearing  falsely  to  a  civil  action  for  dam- 
ages, at  the  suit  of  the  person  injured,^  although  it  has 
been  said  that  a  person  not  a  party  to  the  suit  in  which 
the  perjured  testimony  was  given,  whose  character  has 
been  injured  by  such  testimony  may  maintain  an  action 
for  damages  against  the  person  who  suborned  the  witness 
to  testify  falsely.* 

<§,  518.  Right  of  action  as  dependent  upon  rela- 
tive VALUES.  The  right  of  a  person  to  redress  for  an 
injury  to  property  can  not  depend  upon  the  value  of  the 
property  injured  as  contrasted  with  the  value  of  an- 
other's business  enterprise,  in  the  promotion  of  which 
business  the  injury  came  about. ^  Thus,  where  the  injury 
complained  of  is  the  washing  away  of  the  plaintiff's 
water  ditch,  and  the  damage  claimed  is  the  loss  of  water- 
sales,  the  cost  and  value  of  the  ditch  as  a  structure,  sep- 

1  See,  among  other  cases:  CONN.  Cunningham  v.  Brown,  18  Vt.  126, 

— Bostwick  V.   Lewis,   2   Day   447.  64  Am.  Dec.  140. 
IND.  — Grove    v.    Brandenburg,    7  As    to     perjury     as    furnishing 

Blackf.    234.      LA.  —  Gunsman    v.  grounds  for  civil  actions  for  dam- 

Hearsy,  28  La.  Ann.  709,  26  Am.  ages,  see  24  L.  R.  A.  (N.  S.)  265. 
Rep.  104.   ME.— Dunlap  v.  Glidden,  -  Damport  v.  Sympson,  Cro.  Eliz. 

31  Me.  435,  52  Am.  Dec.  625.  MASS.  520,  78  Eng.  Repr.  769. 
—Phelps    V.    Sterns,    70    Mass.    (4  3  Taylor  v.  Bidwell,  65  Cal.  489, 

Gray)  105,  64  Am.  Dec.  61;  Parker  4  Pac.  491. 

V.  Huntington,  73  Mass.   (7  Gray)  -i  Rice  v.  Coolidge,  121  Mass.  393, 

36,  66  Am.  Dec.  455.     N.  H.— Stev-  23  Am.  Rep.  279. 
ens  V.  Rowe,  59  N.  H.  578,  47  Am.  As  to  subornation  of  perjury  as 

Rep.  231.     N.  Y.— Smith  v.  Lewis,  furnishing  ground  for  civil  action 

3  Johns.  157,  3  Am.  Dec.  469.   N.  C.  for  damages,  see  24  L.  R.  A.  (N.  S.) 

— Godetti  V.  Gaskill,  151  N.  C.  52.  267. 

134  Am.  St.   Rep.  964,  24   L.   R,  A.  i  Hill  v.  Weisler,   1  Cal.  Unrep. 

(N.   S.)    265,   65   S.   E.  612.     VT.—  724. 

GTS 


Cll.  I.]  TRIVIAL  INJURIES.  §§  519,  520 

arate  and  apart  from  the  water-rights,  has  nothing  to  do 
with  determining  the  amount  of  the  damages.^ 

§  519.  Trivial  injuries  not  invading  fundamen- 
tal RIGHT.  No  cause  of  action  is  raised  by  a  trivial  injury 
not  invading  a  substantial  right  wrongfully,  such  an  in- 
jury being  regarded  as  damnum  absque  injuria,^  on  the 
principle  expressed  in  the  common-law  maxim,  de  mini- 
mis non  curat  lex — the  law  does  not  care  for,  or  take 
notice  of,  trifling  matters ;-  except  in  those  cases  in  which 
a  positive  and  fundamental  right  has  been  wrongfully  . 
invaded,  and  when  this  is  the  case  the  law  furnishes  re- 
dress, no  matter  how  trifling  the  injury  sustained.^  Thus, 
it  has  been  said  that  the  fact  that  the  plaintiff  might  be 
entitled  to  nominal  damages  for  the  negligence  of  the 
defendant,  this  would  not  entitle  the  plaintiff  to  recover 
the  costs  in  the  case,  and  under  the  maxim  de  minimis 
non  curat  lex,  no  question  of  permanent  right  exists  be- 
tween the  parties  to  be  settled  by  a  trial,  and  hence  it  was 
not  error  to  sustain  a  general  demurrer  to  the  complaint.* 

§  520.  Frivolous  and  collusive  actions.  We  have 
already  seen  that  the  law  does  not  take  cognizance  of 
trifling  injuries;^  neither  will  it  take  cognizance  of  ficti- 
tious suits- — not  at  present,  or  of  frivolous  litigation,^ 
where  no  positive  fmidamontal  right  has  been  invaded, 
but  if  such  a  right  has  been  wrongfully  invaded,  the  court 
will   take   cognizance   of   the   action   regardless    of   the 

2  Id.  Rochester  R.  Co.,  5  Hill  (N.  Y.) 
.     1  Weaver  v.  Eureka  Lake  Co.,  15      170;  State  ex  rel.  Greene  v.  Owen, 

Cal.   271,   1    Morr.    Min.    Rep.    642;  125  N.  C.  212,  34  S.  E.  424. 

Natoma  Water  &  Min.  Co.  v.  Mc-  4  Kenyon  v.  Western  Union  Tel. 

Coy,  23  Cal.  490,  4  Morr.  Min.  Rep.  Co.,  100  Cal.  454,  35  Pac.  75. 

490.  1  See,  ante,  §  519. 

->  Wall,  Ex  parte,  48  Cal.  279,  17  2  See,  ante,  §§  505-507. 

Am.  Rep.  425;  Kenyon  v.  Western  .•?$1.04    involved,   action   will   be 

Union    Tel.    Co..    100    Cal.    454,    35  dismissed    under   morim    de    niini- 

Pac.  75.  mis  non  curat  lex. — Galm  v.  United 

3  Seneca  Road  Co.  v.  Auburn  &  States,  39  Ct.  of  CI.  55. 

679 


§521 


CODE   PLEADING   AND   PRACTICE. 


[Pt  II, 


amount  involved.^  And  wliere  it  is  manifest  that  the 
plaintiff  is  entitled  to  nominal  damages  merely  for  the 
negligence  which  is  the  basis  of  an  action,  which  dam- 
ages will  not  entitle  him  to  a  judgment  for  costs,  there  is 
no  substantial  right  to  be  litigated.^  An  action  brought 
to  recover  personal  property  by  a  person  who  has  no 
interest  therein,  and  no  expectation  thereto,  at  the  insti- 
gation of  an  outsider  to  enable  him  to  perpetrate  a  wrong, 
is  a  fraud  upon  the  defendant.^ 

§  521.  Unnecessary  and  vexatious  actions.  The  courts 
will  not  take  cognizance  of  an  unnecessary  or  vexatious 
action.  Thus,  a  person  who  already  holds  the  legal  and 
equitable  title  to  land  can  not  maintain  an  action  to  com- 
pel further  conveyance;^  a  contest  of  the  nomination  of  a 
person  to  be  a  candidate  for  office  at  a  public  election, 
will  not  be  heard  after  the  public  election  has  been  held  ;^ 
suit  can  not  be  maintained  in  a  court  of  equity  to  procure 
a  decree  cancelling  a  record  or  an  instrument  void  upon 
its  face.^  Where  a  purchase  of  intoxicating  liquors,  in 
violation  of  a  municipal  ordinance,  was  made  at  the  insti- 
gation of  the  authorities  of  the  municipality  for  the  pur- 
pose of  manufacturing  a  ''test  case"  under  the  ordinance, 
although  the  seller  of  the  intoxicating  liquor  was  ignorant 
of  the  purpose,  the  court  refused  to  give  an  opinion  as  to 
what  sale  would  constitute  a  violation  of  the  ordinance.'* 


4  Right  to  office  involved,  suit 
will  be  entertained  to  determine 
the  right  regardless  of  the  emolu- 
ment; e.  g.,  eight  dollars  a  month 
and  board. — State  ex  rel.  Greene 
V.  Owen,  125  N.  C.  212,  34  S.  E. 
424. 

See,  also,  ante,  §  519,  footnote  3. 

5  Kenyon  v.  Western  Union  Tel. 
Co.,  100  Cal.  454,  35  Pac.  75. 

6  Burdett  V.  Surdez,  94  Kan.  494, 
146  Pac.  1025. 


1  Truebody  v.  Jacobson,  2  Cal. 
86. 

2  Johnson  v.  Dosland,  103  Minn. 
147,  114  N.  W.  465.  See  Ellison  v. 
Barnes,  23  Utah  183,  63  Pac.  899.' 

3  Multnomah  County  v.  Portland 
Cracker  Co.,  49  Ore.  345,  90  Pac. 
155. 

4  Ford  V.  Denver,  City  of,  10 
Colo.  App,  500,  51  Pac.  1015. 


G80 


CHAPTER  II. 

CHARACTER  OR  NATURE  OF,  AND  FORMS  OF,  ACTIONS. 

§  522.  In  general. 

§  523.  Distinctions  abolished — New  cause  of  action  not  created. 

§  524.  Classification  according  to  nature — Real,   personal   and 
mixed  actions. 

§  525.  Actions  ex  contractu  and  ex  delicto. 

§  526.  Actions  on  express  and  implied  contracts. 

§  527.  Determining  character  of  action — Relief  demanded. 

§  522.  In  GENERAL.  It  has  already  been  pointed  out 
that  the  old  common-law  forms  of  action  have  been  done 
away  with  in  all  those  jurisdictions  having  a  reformed 
code  of  judicature,  one  general  form  being  substituted 
for  the  various  and  highly  technical  forms  of  action 
theretofore  prevailing,  for  all  civil  actions,  whether  at 
law  or  in  equity.^  But  while  all  the  artificial  distinctions 
theretofore  prevailing  are  abolished,-  as  well  as  all  fic- 
tions and  all  the  various  forms  of  action,^  the  various 
remedies  administered  under  the  former  procedure  for 
the  various  grievances  were  not  abolished.^  Merely  the 
technical  form  of  the  action,  not  the  substance  thereof,  is 
the  thing  abolished ;  and  the  pleading,  under  reformed 
judicature,  must  be  such  as  to  show  (1)  the  nature  of 
the  grievance  complained  of,  (2)  the  character  of  the  evi- 
dence required,  (3)  the  measure  of  the  relief  to  be 
granted,  and  (4)  be  sufficient  to  show  to  the  court  whetlier 
the  relief  sought  is  to  be  had  on  the  law  or  the  equity 
side  of  the  court.  In  other  words,  while  the  forms  of 
action  are  abolished  the  classification  of  grievances  is 
not.  Professor  Bliss  has  well  said  that  **sucli  distinc- 
tions as  exist  in  the  nature  of  things  must  be  recognized, 

1  See,  ante,  §S  21-30,  3  See,  ante,  §  29, 

2  See,  ante,  §  30.  4  Id. 

681 


§  523  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

and  they  are  equally  recognized  whether  a  specific  name 
be  given  to  the  suit  or  action,  with  a  corresponding  for- 
mula, or  whether  they  arise  from,  and  are  known  only  by, 
the  nature  of  the  grievance  and  the  character  of  the 
relief."^  In  other  words,  the  fundamental  principles  and 
classification  of  substantive  law  are  not  changed  by  the 
reformed  codes  of  judicature — merely  the  form  in  which 
the  cause  is  to  be  presented  to  the  court  for  determina- 
tion is  the  thing  that  is  changed.  Hence  the  mastery  of 
the  fundamental  principles  of  the  substantive  law  is  as 
much  a  necessity  under  reformed  as  under  common-law 
judicature — formalities,  technicalities,  trivialities,  and 
"learned"  quibbles,  only,  are  swept  away. 

"^  523.  Distinctions  abolished — New  cause  of  action 
NOT  CREATED.  Distiuctious  betwecii  causes  of  action, 
whether  in  law  or  in  equity,  are  abolished  by  the  reformed 
procedural  codes,  but  new  causes  of  action  are  not  created 
thereby.  The  procedural  codes  have  to  do  solely  with 
the  method  of  procedure  in  the  courts ;  not  the  right  of 
the  parties  under  the  fundamental  law  of  the  land.  The 
distinction  between  actions  at  law  and  suits  in  equity  are 
done  away  with,  and  the  pleading  is  the  same  regardless 
of  the  side  of  the  court  on  which  relief  is  to  be  sought ; 
whether  the  cause  depends  upon  legal  or  equitable  prin- 
ciples, it  is  to  be  commenced  and  prosecuted  mthout 
reference  to  this  distinction.^  The  simple  form  of  plead- 
ing in  a  court  of  equity  is  adopted,  in  which  the  applica- 
tion is  always  by  a  bill,  no  matter  what  the  particular 
grievance  complained  of  or  the  remedy  to  be  adminis- 
tered.^ The  principles  by  which  the  rights  of  the  parties 
are  to  be  determined  remain  unchanged.  The  distinctions 
between  law  and  equity  are  not  abolished;  these  distinc- 
tions are  as  broad  as  they  ever  were ;  the  forms  of  the 

5  Bliss  on  Code  Pleading,  §  6.  76.      See   Wilcaux   v.    Saunders.   4 

1  Cole  V.  Reynolds,  18  N.  Y.  74,      Neb.  585. 

■2  See  Bliss  on  Code  Pleading,  §  7. 

682 


m 


l-h.  II.]  niFTINCTIOXS  AHOLISHED.  §  52'] 

actions  alone  are  affected  by  the  procedural  codes."' 
While  no  new  cause  of  action  is  given,  parties  are  allowed 
to  maintain  certain  actions  who  could  not  have  main- 
tained them  under  the  former  system  of  judicature;  but 
in  no  case  can  an  action  be  maintained  where  no  action 
at  all  could  have  been  maintained  before,  upon  the  same 
state  of  facts. ^  Where,  under  the  former  system  of  judi- 
cature, a  certain  state  of  facts  would  have  entitled  a  party 
to  a  decree  in  equity  in  his  favor,  under  the  reformed 
judicature  the  same  state  of  facts,  in  an  action  prose- 
cuted in  the  manner  prescribed  therein,  the  party  will  be 
entitled  to  a  judgment  or  a  decree  granting  him  the  same 
redress  or  relief.  On  the  other  hand,  if  the  facts  are  such 
that  the  party,  under  the  former  procedure,  would  have 
been  entitled  to  a  judgment,  he  will,  in  proceeding  as  di- 
rected in  the  reformed  procedural  codes,  secure  the  same 
judgment.''  That  is  to  say,  the  effect  of  the  abolition  of 
the  distinction  between  actions  at  law  and  suits  in  equity 
is  to  substitute  the  ''civil  action"  for  such  proceedings 
as  were  formerly  known  as  ''actions  at  law"  or  "suits  in 
equity."  The  plaintiff  sets  forth  in  his  complaint,  indif- 
ferently, legal  or  equitable  grounds  for  relief,  or  both, 
and  the  court  w^ill  administer  such  relief  as  the  facts  in 
the  case  warrant,  whether  they  be  legal  or  equitable,  or 
both.« 

3  See  Jones  v.  Steamship  Cortez,  ship  Cortez,  17  Cal.  487;   Wiggins 

17  Cal.  487;   Miller  v.  Van  Tassel,  v.  McDonald,  18  Cal.  126;  Smith  v. 

24  Cal.  458,  463;  Dickson  v.  Cald-  Richmond,  19  Cal.  476;  Humiston 
well,  15  Ohio  St.  412,  86  Am.  Dec.  v.  Smith,  21  Cal.  129;  Miller  v.  Van 
487;  Williams  v.  Englebrecht,  37  Tassel,  24  Cal.  458;  O'Connor  v. 
Ohio  St.  383;  Zeile  v.  Moritz,  1  Dingley,  26  Cal.  11;  Kimball  v. 
Utah  283,  286;  Kahn  v.  Old  Tele-  Lohmas,  31  Cal.  154;  Grain  v.  Al- 
graph  Min.  Co.,  2  Utah  174,  11  drich,  38  Cal.  514,  99  Am.  Dec.  423; 
Morr.  Min.  Rep.  643,  645;  Cham-  McPherson  v.  Weston,  64  Cal.  275, 
berlain  v.  Marshall,  8  Fed.  398.  280,  30  Pac.  842;  Walsh  v.  McKeen, 

•1  See  footnote  1,  this  section.  75  Cal.  519,  523,  17  Pac.  673;  Wat- 

5  Id.  son  V.   Sutro,  86  Cal.  500,  528,  24 

«  See,  among  other  cases:  ARIZ.  Pac.   172,  25  Pac.  64;    Townley  v. 

— Houghtaling  v.  Ellis,  1  Ariz.  383,  Adams,  118  Cal.  382,  384.  50  Pac. 

25  Pac.  534.  CAL.— Jones  v.  Steam-  550;  Angus  v.  Carven,  132  Cal.  691, 

683 


§524 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  II, 


<§>  524.  Classification  according  to  nature — Real,  per- 
sonal AND  MIXED  actions.  At  commoii  law,  and  under  the 
old  system  of  judicature,  actions  were  divided,  according- 
to  the  nature  of  the  subject-matter  of  the  action,  into: 
I.  Real  Actions;  II.  Personal  Actions,  and  III.  Mixed 
Actions ;  and  this  classification  is  retained  under  the  re- 
formed codes  of  judicature. 

7.  Real  actions  are  those  for  the  recovery  of  specific 
real  property  only,  in  which  the  plaintiff, — under  the  old 
procedure  called  the  demandant, — claims  title  to  lands, 
tenements  or  hereditaments, — under  the  common  law  in 
fee-simple,  fee-t^il,  or  for  life  or  a  term  of  years,  by  such 


698,  64  Pac.  1091;  Redpath  v.  Even- 
ing Elxpress  Co.,  4  Cal.  App.  361, 
S8  Pac.  287;  Graham  v.  Light,  4 
Cal.  App.  400,  88  Pac.  373.  COLO.— 
Henry  v.  Travelers'  Ins.  Co.,  16 
Colo.  179,  186,  26  Pac.  318.  IDAHO 
— Wa  Ching  v.  Constantine,  1  Idaho 
266;  First  Nat.  Bank  v.  Bews,  3 
Idaho  429,  31  Pac.  318.  NEB.— 
Turner  v.  Althaus,  6  Neb.  54.  N.  Y. 
— Marquat  v.  Marquat,  12  N.  Y. 
336,  reversing  7  How.  Pr.  417; 
Emery  v.  Pease,  20  N.  Y.  62,  64; 
New  York  Ice  Co.  v.  Northwestern 
Ins.  Co.,  23  N.  Y.  357,  12  Abb.  Pr, 
414,  21  Hc"/.  Pr.  296;  Barlow  v. 
Scott,  24  N.  Y.  40;  Davis  v.  Mor- 
ris, 36  N.  Y.  ,569,  3  Transc.  App. 
226;  Corning  v.  Troy  Iron  Nail 
Factory,  40  N.  Y.  191,  207;  Corn 
Exchange  Ins.  Co.  v.  Babcock,  42 
N.  Y.  613,  1  Am.  Rep.  601,  9  Abb. 
Pr.,  N.  S.,  156,  reversing  8  Abb. 
Prac,  N.  S.,  246,  57  Barb.  222; 
Parker  v.  Laney,  58  N.  Y.  469,  re- 
versing 1  Thomp.  &  C.  590;  Will- 
iams V.  Slote,  70  N.  Y.  601.  .OHIO— 
Mack  V.  Bonner,  3  Ohio  St.  366; 
Kloune  v.  Bradstreet,  7  Ohio  St. 
323;  Clayton  v.  Freet,  10  Ohio  St. 


544;  Hager  v.  Reed,  11  Ohio  St. 
626;  Ward  v.  Howard,  12  Ohio  St. 
158;  Penn  v.  Hay  ward,  14  Ohio  St. 
302;  Dickson  v.  Caldwell,  15  Ohio 
St.  412,  86  Am.  Dec.  487;  Barger 
v.  Cochran,  15  Ohio  St.  460;  Neil- 
son  V.  Fry,  16  Ohio  St.  552,  91 
Am.  Dec.  110;  Morgan  v.  Spangler, 

20  Ohio  St.  38;  Jones  v.  Timmons, 

21  Ohio  St.  596;  Chinn  v.  Trus- 
tees, 32  Ohio  St.  236;  Culver  v. 
Rodgers,  33  Ohio  St.  537;  Will- 
iams v.  Englebrecht,  37  Ohio  St. 
383.  S.  C. — Parker  v.  Jacobson,  14 
S.  C.  118.  UTAH— Zeile  v.  Mor- 
itz,  1  Utah  283,  286;  Kahn  v.  Old 
Telegraph  Min.  Co.,  2  Utah  174, 
11  Morr.  Min.  Rep.  643,  645. 

Regulations  by  which  ordinary 
constitutional  powers  exercised  by 
Supreme  Court  of  the  state,  in 
criminal  cases,  over  courts  of  sub- 
ordinate jurisdiction,  not  being 
prescribed  in  a  procedural  code, 
in  bringing  the  case  before  it  the 
Supreme  Court  may  resort  to  such 
writs  as  were  known  to  the  com- 
mon law. — Lynes  v.  State,  5  Port. 
(Ala.).  236,  30  Am.  Dec.  557.  See 
People  v.  Jordan,  65  Cal.  544,  651, 
56  Am.  Rep.  75,  4  Pac.  663 


CS4 


Ch.  II.]  CLASSIFICATION — PERSONAL  ACTIONS.  §  524- 

processes  as  writs  of  right,  formedon,  dower  and  the 
like.i 

//.  Personal  actions  are  for  the  recovery  of  (1)  a  debt, 
(2)  damages  for  the  breach  of  a  contract,  (3)  for  the 
recovery  of  a  specific  personal  chattle,  and  (4)  for  the 
recovery  of  damages  (a)  to  the  person,  (b)  to  personal 
property,  or  (c)  to  real  property.-  Personal  actions  are 
subdivided  into  actions  in  form  (1)  ex  contractu  and 
(2)  ex  delicto;^  that  is  to  say  (1)  actions  founded  upon, 
or  for  the  breach  of,  an  express  contract,  and  (2)  actions 
to  recover  damages  for  wrongs  unconnected  with  any 
contract.*  At  common  law  actions  upon  contract  were 
subdivided  into  (1)  assumpsit,  (.2)  debt,  (3)  covenant, 
(4)  detinue,  and  the  like — although  detinue  was  in  some 
respects  an  action  ex  delicto.^  At  common  law  actions 
for  damages  for  a  wrong  unconnected  with  any  contract 
were  divided  into  (1)  case,  (2)  trover,  (3)  replevin,  and 
(4)  trespass  vi  et  armis — emphatic  words  in  common-law 
writs  and  declarations  of  trespass,  in  which  acts  of  force 
and  violence  were  charged.  While  all  these  common-law 
distinctions  in  the  forms  of  action  in  both  these  classes 
or  divisions  of  action  have  been  swept  away  by  the  re- 
formed procedural  codes,  those  codes  recognize  the  dis- 
tinctions between  actions  founded  upon  contract  and 
those  founded  upon  a  tort  as  fundamental  in  the  very 
nature  of  things,  and  as  highly  important;*'  for  though 
the  procedural  codes  abolish  the  distinctions  between  the 
common-law  forms  of  actions,  the  intrinsic  difference 
between  the  actions,  in  their  nature,  remains  still,  and  the 
fundamental  principles  by  which  the  forms  of  action 
were  formerly  governed  prevail  under  the  reformed  judi- 
cature, and  control  in  determining  the  rights  of  the  par- 

1 1  Chitty's  Pleadings  (16th  Am.  4  i  Chitty's  PI.    (ICth  Am.  ed.) 

ed.)  109.  109. 

2  Id.  5  Id.,  110. 

■"•  As  to  actions  ex  contractu  and  «  Cooper  v.   London,    102   Mass. 

ex  delicto,  see,  post,  §  525.  58,  60. 

685 


§  525  CODE  PLEADING  AND  PRACTICE.  [Pt.  li, 

ties/  The  reformed  procedural  codes  make  no  change 
in  the  rules  of  evidence,  applicable  at  common  law,  to  the 
various  causes  of  action  comprehended  under  the  general 
designation  of  '* actions  of  tort."** 

III.  Mixed  actions  are  those  actions  which  partake  of 
the  nature  of  both  real  and  personal  actions,  in  which 
the  plaintiff  proceeds  (1)  for  the  specific  recovery  of 
some  real  property,  (2)  for  damages  to  real  property,  as 
in  an  action  of  (a)  ejectment,  or  (b)  for  waste,  and — 
under  the  common  law — (c)  quare  impedit,''  and  the 
like  ;^"  although  ejectment  has  been  said  to  be  a  personal 
rather  than  a  mixed  action  at  common  law.^^ 

§  525.    Actions  ex  contractu  and  ex  delicto.  The 

divisions  of  actions  according  to  their  nature  has  already 
been  set  out,^  and  is  not  required  to  be  retabulated  in 
this  place.  The  primary  division  of  all  civil  actions  is 
into  two  great  classes  or  kinds :  I.  Ex  contractu  and  II. 
Ex  delictu. 

/.  Actions  ex  contractu,  those  actions  arising  out  of,  or 
founded  upon,  an  express  contract.^  This  is  a  term  of 
the  civil  law,  expressive  of  one  of  the  principal  divisions 

7  See  Houghtaling  v.  Ellis,  1  brought  at  common  law  by  the 
Ariz.  383,  387,  25  Pac.  534;  Labert  patron  of  an  advowson,  where  dis- 
V.  Chauviteau,  3  Cal.  458,  58  Am.  turbed  in  his  right  of  patronage; 
Dec.    415;    Magwire    v.    Tyler,    47      so  called  from  the  emphatic  words 

in  the  old  for,  by  which  the  dis- 
turber was  summoned  to  answer 
"why  he  hinders"  the  plaintiff. — 3 
dridge  V.  Adams,  54  Barb.  (N.  Y.)  gj  ^^^  ^^^^  248.  3  Steph.  Com. 
417;  Booth  V.  Farmers'  &  Mer-  ^^  ^^^  ^aw  (5th  ed.),  661. 
chants'  Nat.  Bank,  65  Barb.  (N.  Y.)  ^^.^  ^^^.^^  ^^  ^^^^^^^         ^^^^^ 

457,  459,  1  Thomp.  &  C.  45;   Pais-      ^^  ^  ..^^^j  ^^^.^^,, 


Mo.    115;     Goulet    v.    Asseler,    22 
N.   Y.   225,   78   Am.    Dec.   186;    El- 


ley    V.    Nicholson,    65    N.    C.    207; 
Kewaunee    County    v.    Decker,    30 

Wis.  624. 


10  1  Chitty's  Pleadings  (16th  Am. 
ed.)  109. 

11  Steph.  Com.  on  Eng.  Law  (5th 
s  Winship  v.  Neale,  76  Mass.  (10      gd.)  13,  also  appendix  VII,  note  3. 

Gray)  382;   Harrison  v.  Bailey,  99  i  ggg    ante,  §4. 

Mass.  620,  97  Am.  Dec.  63;   Blake  2  The    question    of    implied    con- 

V.  Damon,  103  Mass.  199.  tracts,  under  the  reformed  judica- 

9  A   writ   or   action   which    wa;»      ture,  is  discussed,  post,  §  526. 

686 


eh.  II.]  ACTIONS  EX  DELICTO.  §  525 

of  the  grounds  of  obligations  and  of  actions,^  was  adopted 
into  the  English  common  law  at  an  early  date,^  and  still 
constantly  employed  in  the  law  of  actions,^  both  in  the 
old  and  the  reformed  systems  of  judicature;  and  under 
the  old  system  of  judicature  there  were  complex  and 
technical  rules  governing  as  to  who  should  be  made  par- 
ties, either  plaintiffs  or  defendants,'^  which  rules  have 
been  done  away  with  under  the  reformed  system  of  judi- 
cature. 

II.  Actions  ex  delicto,  actions  arising  out  of,  or 
founded  upon,  misconduct,  misfeasance,  malfeasance,  or 
tort.  This,  also,  was  a  term  of  the  civil  law,  expressive  of 
another  of  the  principal  divisions  of  the  grounds  of  obli- 
gations and  of  actions,'^  likewise  adopted  into  the  common 
law  of  England  at  an  early  date,^  and  still  constantly 
employed  in  the  law  of  actions,  both  under  the  old  and 
the  reformed  systems  of  judicature,  and  under  the  old 
system  with  the  same  complex  and  technical  rules  as  to 
])arties,  both  plaintiffs  and  defendants,^  which  rules  are 
not  applicable  under  the  reformed  system  of  judicature. 
This  class  of  actions  also  embraces  causes  of  action  aris- 
ing out  of  crime,  or  a  violation  of  law ;  e.  g,,  contraband 
goods  seized  and  condemned  ex  delicto. ^^ 
'  Tort  is  a  private  wrong,  or  a  personal  wrong,  as  dis- 
tinguished from  a  wrong  to  the  public,  a  crime.  A  tort 
is  distinguished  from  a  contract  (1)  in  that  the  party  may 
be  arrested  on  process,  and  imprisoned  on  the  judgment; 
(2)  in  that  there  is  no  right  of  contribution  between  the 
several  defendants  for  a  joint  wrong;  (3)  in  that  joint 
tort-feasors  or  wrongdoers  are  severally  liable;   (4)   at 

:5  Inst,    3,   14,   2;    Id.,   4,   1,    pr.;  7  Inst.,    4,    1,    tit.    and    par.;     1 

Id.,  4,  6,  1,  17,  IS;  1  Mackeld.  Civ.      Mackld.  Civ.  Law  102,  §  195. 

Law,  101,  §  195.  g  Broct.  fol.  10]  b,  3  Bl.  Com.  117. 

4  Broct.  fol.  99;   3  Bl.  Cora.  117. 

5  1  Chittys  PI.    (16th  Am.  ed.).  «1   Chitty's   PI.    (16th   Am.   ed.) 
p.  2;  1  Tidd's  Pr.  1.                                 68-105. 

<!  See   1   Chitty's   PI.    (16th   Am.  lo  See  1  Kent's  Com.  125,  143. 

ed.),  pp.  2-68. 

C37 


§526 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  II, 


common  law,  the  action  does  not  survive,  but  abates  with 
the  death  of  the  party.  These  are  very  wide  and  impor- 
tant distinctions.  A  tort  may  grow  out  of,  or  be  con- 
nected with,  a  contract,  and  in  such  a  case  it  must  clearly 
have  all  the  necessary  elements  of  a  tort  to  be  followed 
by  such  serious  consequences.  An  action  on  the  con- 
tract can  not  be  waived,  and  one  in  tort  resorted  to,  ex- 
cept in  a  clear  case  of  tort,  and  then,  in  such  case,  the  tort 
may  be  waived  for  an  action  in  contract.^^ 


§526. 


Actions  on  express  and  implied  contracts. 


Under  the  old  system  of  judicature,  there  were  two  pri- 
mary divisions  of  contracts,  to-mt:  (1)  express  contracts, 
either  oral,  in  writing,  or  under  seal — in  which  latter  case 
they  were  a  "specialty"^  or  ''special  debt,"^  and  (2)  im- 
plied contracts — a  contract  said  to  be  implied  by  reason 
and  justice,  and  which  the  common  law,  for  that  reason, 
presumes  that  every  man  undertakes  to  perform ;  e.  g.,  a 
man  employing  another  to  do  any  business,  or  to  perform 
any  labor,  for  him  the  common  law  implies  that  he  under- 
took or  contracted  or  agj"eed  to  pay  therefor  as  much  as 
the  services  or  labor  were  reasonably  worth. ^  This  pre- 
sumption of  an  agreement  or  contract  to  pay,  raised  by 
the  common  law,  was  a  pure  ''fiction  of  the  law"  or, a 
"legal  fiction";  and  as  all  legal  fictions  are  supposed  to 
have  been  abolished  by  reformed  procedural  codes,  it  is 
not  regarded  as  correct  nomenclature  to  speak,  as  in  such 
jurisdictions,  of  such  obligations  as  "implied  contracts" 
or  "implied  promises."  Under  such  codes  such  obliga- 
tions are  properly  characterized  as  "duties  imposed  by 
law";*  and  a  duty  arising  from  operation  of  law  may  be 
enforced  in  the  maimer  provided  by  law,  or  by  a  ci\nl 
action    or    proceeding,^    without    lugging   in    the    dead 


11  Van    Oss    v.    Synou,    85    Wis. 
661,  56  N.  W.  190. 

1  See  Chitty  on  Contracts,  3. 

2  2  Bl.  Com.  465. 

S2  Bl.  Com.  443;   3  Id.  158-165; 


2  Steph.  Com.  on  Eng.  Com.  Law 
(5th  ed.)  110,  111. 

4  Kerr's    Cyc.    Cal.    Civ.    Code, 
§§  1708-1715. 

5  Id.,  §  1428. 


G88 


■ 


eh.  II.]  EXPRESS  AND  IMPLIED  CONTRACTS.  §  526 

''fiction"  of  a  contract  or  promise  to  pay.  What  has 
heretofore  been  known  as  ''implied  contracts" — and  is 
still  retained  in  some  reformed  codes — is  nothing  other 
than  an  obligation  imposed  by  law,  warranted  by  justice 
between  the  parties,  but  not  with  the  assent  or  consent  or 
contract  of  the  party  to  be  charged,  and  not  unfrequently 
against  his  dissent, — e.  g.,  where  a  father  or  a  husband 
neglects  and  refuses  to  provide  necessaries  for  his  child 
or  wife,  and  refuses  to  allow  any  one  else  to  do  so;  and 
that  being  the  case  such  obligations  have  no  affinity  with 
contracts, — in  which  the  party  to  be  bound  expressly 
agrees  or  assents  thereto,  is  effected  by  the  mutual  un- 
derstanding of  the  parties — and,  upon  principle,  they 
can  not  properly  be  classed  with  contracts.^  Although, 
as  noted  above,  some  of  the  reformed  codes  expressly 
recognize  "implied  contracts,"  as  in  California,  and  de- 
fine such  a  contract  as  "one,  the  existence  and  terms  of 
which  are  manifested  by  conduct"'^ — whatever  that  may 
mean  in  the  ultimate  analysis.  The  courts  of  the  same 
state  have  declared  that  an  implied  contract  must  be 
founded  upon  an  "ascertained  agreement,"^ — which 
manifestly  carries  in  its  terms  a  reductio  ad  absurdum, 
for  if  there  is  an  "ascertained  agreement,"  it  is  a  con- 
tract pui-e  and  simple,  and  not  the  obligation  called  an 
implied  contract.     The  whole  trouble  in  this  matter  lies 

6  Bliss  on  Code  Pleading,  §§  128,  fact.— Marshall  v.  Wentz,  28  Cal. 
152,  154.  App.  540,  153  Pac.  244. 

7  Kerr's  Cyc.  Cal.  Civ.  Code,  This  is  thought  to  be  a  confu- 
§1621;  Jennings  v.  Bank  of  Call-  sion  of  terms  and  principles.  The 
fornia,  79  Cal.  323,  326,  12  Am.  St.  very  statement  of  the  court  shows 
Rep.  145,  5  L.  R.  A.  233,  21  Pac.  that  they  as  a  matter  of  fact  place 
852;  Marshall  v.  Wentz,  28  Cal.  the  liability  to  pay  on  "there  being 
App.  540,  153  Pac.  244.  already  a  legal  obligation  to  pay 

Law    will    imply    a    contract    to  it";    in  other  words,   the   duty   to 

pay  money  in  some  cases  from  the  pay   is   an  obligation   imposed   by 

fact  of  there  being  already  a  legal  law,  and  there  is  no  occasion  for 

obligation  to  pay  it,  although  the  dragging  in  the  "legal  fiction"  of  a 

transaction,  in  its  origin,  was  en-  promise  to  pay. 
tirely   unconnected   with  contract,  s  Smith  v.  Moynihan,  44  Cal.  53, 

and  there  had  been  no  promise  in  62. 

I  Code  PI.  and  Pr.— 44  (JgO 


§  527  CODE   PLEADING   AND   PRACTICE.  [Pt.  II, 

in  two  things:  (1)  A  failure  to  grasp  the  fundamental 
legal  distinction  between  the  two  classes  of  obligations— 
which  are  in  their  nature  as  distinct  the  one  from  the 
other  as  an  action  ex  contractu  is  from  an  action  ex  de- 
licto— the  one  based  upon  an  express  agreement  and  the 
other  characterized  by  the  absence  of  all  agreement  or 
assent  or  contract,  being  simply  an  obligation  or  duty 
imposed  by  the  law  because  it  is  right  and  just  between 
the  parties;  and  (2)  a  seeming  inability  to  realize  that 
the  fundamental  concept  of  the  reformed  system  of  judi- 
cature is  that  all  ''fictions"  shall  be  done  aw^ay  with — 
and  also  an  inability  to  break  away  from  the  terminology 
of  ''precedents."  And  these  infirmities  are  found  to 
adhere  in  some  of  the  men — schooled  in  the  common  law, 
and  saturated  with  its  ideas  and  "fictions"'* — wdio 
drafted  some  of  the  reformed  codes,  as  was  the  case  in 
California — want  of  full  comprehension  of,  and  of  con- 
sistency to,  an  ideal. 

<§>  527.  Determining  character  of  action — Relief  de- 
manded. Under  the  common-law  system  of  pleading  the 
form  of  the  action  determined  its  character;  but  under 
the  procedural  codes,  in  which  there  is  but  one  form  of  ac- 
tion,^ the  common-law  distinctions  as  to  the  form  of 
action  having  been  abolished,-   the  complaint  must  be 

t'  struggle  for  supremacy  of  the  Marsteller  v.  Leavitt,  130  Cal.  149, 

common   law  in  California  is  dis-  62  Pac.  384;  Faulkner  v.  First  Nat. 

cussed    in    Kerr's    Cyc.    Cal.    Pol.  Bank,   130   CaL  258,   62   Pac.   463; 

Code,  §  4468,  notes  2  and  3.  In  this  Southern  Pac.  R.  Co.  v.  Hyatt,  132 

connection    the    history    given    in  Cal.   240,   64   Pac.   272;    Mowry   v. 

Shuck's  "History  of  the  Bench  and  Weisenborn,  137  Cal.  110,  69  Pac. 

Bar    of    California,"    pp.    47-53,    is  971. 
very  interesting  and  valuable.  Forms  of  action  are  cast  aside, 

1  Payne    v.    Tread  well,    16    Cal.  and  now  every  action  is,  in  effect, 

220;  Wiggins  v.  McDonald,  18  Cal.  a    special    action    on    the    case. — 

126;  Watson  v.  Sutro,  86  Cal.  528,  Rogers  v.  Duhart,  97  Cal.  500,  32 

24  Pac.  172,  25  Pac.  64;   Hurlbutt  Pac.  570. 

V.   Spaulding   Saw   Co.,  N.  W.,   93  '^  Sampson   v.    Schaeffer,   3    Cal. 

Cal.    57,    28    Pac.    795;    Rogers    v.  19Q;   Miller  v.  Van  Tassel,  24  Cal. 

Duhart,  97  CaL   500,  32  Pac.  570;  463;    Kimball  v.  Lohmas,   31   Cal. 

GDO 


ch.  II.] 


CHARACTER  OF  ACTION — DETERMINING. 


§527 


looked  to  to  determine  the  character  of  the  action.  But 
the  abolition  extends  to  the  form  of  action  only,'^  the 
present  form  being  the  same  whether  at  law  or  in  equity,^ 
the  substance  of  the  action  determines  its  character,  and 
it  is  immaterial  to  the  rights  of  the  plaintiff  to  recover 
possession  of  real  property  claimed  adversely,  that  he 
denominates  his  proceedings  by  an  old  common-law 
iiame.^  Where  the  facts  stated  in  the  complaint  are  sul)- 
stantially  those  required  to  support  a  particular  com- 
mon-law action,  the  principles  of  pleading  and  practice 
which  apply  to  such  common-law  action  are  applicable  to 
the  facts  pleaded  under  a  procedural  code.''  That  is  to 
say,  the  character  of  the  action,  whether  legal  or  equi- 
table,—and  if  the  complaint  states  either  it  is  suffi- 
cient,'^— is  to  be  determined  from  the  character  of  the 
allegations  in  the  complaint,^  and  the  relief  demanded  f 


154;   Murphy  v.  Crowley,  140  Cal. 
145,  73  Pac.  820. 

See,  also,  supra,  §  30. 

3  DeWitt  V.  Hays,  2  Cal.  463,  56 
Am.  Dec.  352. 

4  Watson  V.  Sutro,  86  Cal.  528, 
24  Pac.  172,  25  Pac.  64. 

o  Southern  Pac.  Co.  v.  Hyatt,  132 
Cal.  240,  64  Pac.  272. 

<i  Faulkner  v.  First  Nat.  Bank, 
130  Cal.  258,  62  Pac.  463. 

7  Walson  V.  Sutro,  86  Cal.  528, 
24  Pac.  172,  25  Pac.  64. 

8  Pluard  V.  Gerrity,  146  111.  App. 
224;  Union  Pac.  R.  Co.  v.  Shook, 
3  Kan.  App.  710,  44  Pac.  685; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Long, 
5  Kan.  App.  644,  1  Am.  Neg.  Rep. 
437,  47  Pac.  993;  Neudecker  v. 
Kohlberg,  81  N.  Y.  296;  Seymour 
V.  Van  Curen,  18  How.  Pr.  (N.  Y.) 
94;  Prudden  v.  Lockport,  40  How. 
Pr.  (N.  Y.)  46;  Gopen  v.  Craw- 
ford, 53  How.  Pr.  (N.  Y.)  278; 
McDonough  v.  Dillingham,  43  Hun 
(X.    Y.)    493;    Cooke   v.   Northern 


Pac.  R.  Co.,  22  N.  D.  266,  133  N.  W. 
303;  Fifleld,  Town  of,  v.  Sweeney, 
62  Wis.  204,  22  N.  W.  416;  Western 
Assurance  Co.  v.  Towle,  65  Wis. 
247,  26  N.  W.  104;  Rawson  Mfg. 
Co.  V.  Richards,  69  Wis.  643,  35 
N.  W.  40;  Potter  v.  Van  Norman, 
73  Wis.  339,  41  N.  W.  524;  Van 
Oss  V.  Synou,  85  Wis.  661,  56  N.  W. 
190;  Junker  v.  Forbes,  45  Fed.  840. 

9  Chambers  v.  Lewis,  2  Hill 
(N.  Y.)  591,  595,  10  Abb.  Pr.  206; 
affirmed,  28  N.  Y.  454,  11  Abb.  Pr. 
210;  Edick  v.  Crein,  10  Rarb. 
(N.  Y.)  445;  Seymour  v.  Van 
Curen,  18  How.  Pr.  (N.  Y.)  94; 
Thompson  v.  Strauss,  29  Hun 
(N.  Y.)    256. 

As  to  determination  of  nature  or 
character  of  action,  see  full  discus- 
sion and  collection  of  authorities 
in  note  50  L,  R.  A.  {N.  S.)  19-32. 

"in  equity  cases  the  prayer  may 
not  be  important  in  determining 
the  relief  to  which  the  plaintiff 
may    be    entitled    from    the    facts 


:9i 


^527 


CODE   PLEADING   AND   PRACTICE. 


1 


the  answer  is  not  to  be  looked  to,^^  although  it  has  been 
said  that  after  issue  joined,  the  averments  necessary  to 
sustain  the  complaint  may  be  found  in  the  answer/^  and 
that  after  verdict  all  the  pleadings  in  the  case  may  be 
considered  in  determining  the  nature  of  the  cause  of 
action  stated.^^ 


stated  in  the  complaint,  yet,  in 
view  of  these  incidents  in  actions 
at  law,  the  demand  for  judgment 
is  very  important,  in  determining 
the  nature  of  the  action,  as  be- 
tween tort  and  contract,  or  as  be- 
tween trover  and  money  had  and 
received." — Van  Oss  v,  Synou,  85 
Wis.  661,  56  N.  W.  190. 

10  Lyon  V.  Mattuse,  19  Ala.  463; 


Welsh  V.  Darragh.   52  N.  Y.   590; 
Goodwin  v.  Griffins,  88  N.  Y.  629. 

11  See  Crowder  v.  IMcDonnell,  21 
Minn.  367,  54  Pac.  43,  citing  Ham- 
ilton V.  Great  Falls  Street  R.  Co., 
17  Mont.  334,  42  Pac.  860,  43  Pac. 
713;  Lynch  v.  Bechtel,  19  Mont. 
548,  48  Pac.  1112. 

12  Barrett  v.  Butler,  5  Kan.  355; 
Hudson  V.  Moon,  42  Utah  377,  130 
Pac.  774. 


692 


CHAPTER  m. 

THEORY  OF  THE  CASE. 

§  528.  In  general. 

§  529.  As  to  nature  of  "theory  of  the  case." 

§  530.  As  to  theory  of  court. 

§  531.  Counsel's  theory  of  the  case — In  general. 

§  532.  Necessity  for. 

§  533.  Nature  of  action  and  relief  entitled  to. 

§  534.  Effect  of  wrong  theory  is  to  defeat  action. 

§  528.  Ix  GENERAL.  FroHi  what  is  said  in  the  preceding 
chapter  regarding  the  determination  of  the  character  of 
the  action  from  the  complaint  in  the  canse,^  it  is  apparent 
that  the  pleader  should  have  a  well-matured  theory  of 
his  cause  before  drafting  his  complaint.  Notwithstand- 
ing the  fact  that  all  the  common-law  forms  have  been 
abolished-  by  the  reformed  procedural  codes,  and  the 
pleader  is  not  any  longer  liable  to  find  his  cause  thrown 
out  of  court  for  the  omission  of  a  technical  triviality,  or 
for  an  error  of  judgment  on  the  nice  and  sometimes  in- 
tricate question  as  to  whether  the  relief  his  client  is 
entitled  to  is  to  be  had  on  the  law  or  the  equity  side  of 
the  court,^  yet  the  pleadings  in  a  cause  should  have  the 

1  See,  ante,  §  527.  troversy    were    presented    to    the 

2  See,  ante,  §§  30,  523.  proper  court.  A  wrong  labeling  of, 

3  Theory  of  the  case  was  abso-  — an  improper  name  given  to, — his 
lutely  essential  under  the  old  sys-  action,  was  fatal.  As  has  been  well 
tem  of  judicature;  not  only  that,  it  said,  "the  plaintiff  may  have 
must  be  the  correct  theory,  or  the  served  his  adversary  in  due  time, 
cause  would  be  thrown  out  of  and  maj^  have  given  as  full  infor- 
court.  A  wrong  theory,  under  the  mation  as  to  the  material  facts  of 
old  system,  led  to  the  adoption  of  the  cause  as  could  be  given  in 
a  wrong  form  of  action;  and  a  another  (form  of)  action;  he  may 
wrong  form  adopted,  the  error  was  have  proceeded  openly  and  fairly 
fatal  to  the  whole  proceeding,  how-  in  all  matters;  there  may  have 
ever  clearly  the  facts  of  the  con-  been   no   question   as   to   the   sub- 

693 


§  529  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

same  thoughtful  care  bestowed  upon  them  as  were  be- 
stowed under  the  former  system  of  judicature.  They 
never  should  be  left  to  be  "licked  into  shape"  by  the 
demurrers  of  antagonists  and  the  rulings  of  the  court. 
And  one  of  the  most  important  things  in  the  successful 
trial  of  a  case  is  the  pre-work  in  maturing  a  well-digested 
and  accurate  ** theory  of  the  cause,"  as  it  will  be  the  pur- 
pose of  this  chapter  to  show  in  detail,  as  well  as  in  the 
election  among  the  remedies  open  to  the  plaintiff,^ — 
which  gives  to  counsel  the  same  advantage  secured  by 
a  general  in  selecting  the  field  of  battle,  where  the  rem- 
edy is  well  and  wisely  selected. 

§529.     As   TO    NATURE    OF    '*  THEORY   OF    THE   CASE."       The 

phrase  '* theory  of  the  case,"  as  used  in  judicature,  has 
a  twofold  aspect — although  it  has  been  said  to  relate  to 
the  basis  of  liability  or  ground  of  defense,  only;^  (1)  As 
respects  the  theory  of  counsel,  and  (2)  as  respects  the 
theory  of  the  court — and  on  which  the  cause  is  tried. ^ 
As  regards  counsel's  theory  of  the  case,  it  is  also  of  a 
twofold  aspect.  In  the  first  place :  As  indicating  his  con- 
ception of  the  conditions  of  fact  on  which  he  bases  his 
cause  of  action, — e.  g.,  that  an  injury  was  inflicted  (1) 
through  negligence,  or  (2)  maliciously  and  wantonly;  or, 
in  an  action  for  damages  for  slander  in  saying  that  a 
practitioner  of  osteopathy  was  '*a  quack  and  a  charla- 
tan," that  the  slander  was  (1)  against  the  practitioner 
complaining,  or  (2)  against  osteopathy  as  a  profession 
or  art — in  which  latter  case  there  can  be  no  recovery.' 

stantial  justice  of  his  claim;    but  have  entered  through  a  particular 

all  this  would  not  avail  if  his  ac-  door." — Hepburn's  Devel.  of  Code 

tion  was  not  technically  the  proper  PL,  §  46. 

one.    He  must  pay  the  costs  and  -i  As  to  election  of  remedies,  see, 
go  out  of  court.    If  he  chose,  he  post,  §§  535-574. 
could  begin  again,  but  under  like  i  South   Bend    Mfg.    Co.    v.    Lip- 
conditions.    At  his  peril,  he  must  hart,    12   Ind.   App.   185,   39   N.  B. 
select  the  proper  formula.    It  was  908. 
not  enough  that  he   stood   within  2  See,  post,  §  530. 
the    temple    of    justice,    he    must  o  See,  post,  §  534,  footnote  3. 

69i 


(1;.  III.]  THEORY  OP  CASE — NATURE  OF.  §530 

In  the  second  place:  As  indicating  his  conception  of  the 
particular  rights  of  his  client  invaded  by  the  conduct  of 
the  defendant,— e.  g.,  whether  it  is  (1)  the  breach  of  a 
contract,  or  (2)  a  wrong  or  tort — which  are  distinct  and 
dissimilar  causes  of  action  that  may  arise  out  of  the  same 
state  of  facts  or  transaction,  but  are  fundamentally  dif- 
ferent in  character,  one  being  an  action  ex  contractu  and 
the  other  an  action  ex  delicto.^ 

The  general  rule  is  that  a  complaint  framed  upon  the 
theory  that  the  acts  complained  of  constitute  a  breach  of 
contract,  and  the  cause  is  tried  on  that  theory,  and  the 
e\ddence  shows  not  a  breach  of  contract  but  a  wrong  or 
tort, — or  vice  versa, — there  can  be  no  recovery,  because 
in  such  a  case  the  evidence  mil  fail  to  support  the  com- 
plaint. However,  a  different  rule  seems  to  have  been 
laid  down  in  a  recent  Kansas  case,  in  which  it  is  lield 
that,  under  the  Kansas  statutes,^  in  a  civil  action  wliicli 
may  be  founded  either  upon  contract  or  upon  tort,  the 
plaintiff  need  not  specifically  or  by  implication  state  ui)on 
which  he  rests  as  the  basis  of  his  action;  that  it  will  be 
sufficient  for  him  merely  to  state  the  facts  constituting 
his  cause  of  action,  in  ordinary  and  concise  langaiage 
Avithout  repetition;  that  he  is  not  required  to  label  his 
action  as  being  either  in  contract  or  in  tort ;  and  that  at 
the  trial  he  cannot  be  compelled  to  elect  to  try  the  cause 
either  upon  the  theory  that  it  is  for  the  breach  of  a  con- 
tract or  that  it  is  for  a  tort." 

§  530.  As  TO  THEORY  OF  COURT.  It  is  tliB  functioH  of  an 
attorney  to  formulate  the  theory  of  his  cause,  and  fiaiiio 
his  complaint  upon  that  theory;  and  this  he  should  do  in 
such  a  manner  as  to  leave  no  doubt  as  to  the  theory  u))()u 
which  the  complaint  is  framed  and  the  action  prosecuted. 
It  is  the  function  of  the  court  to  construe  and  intcrijict 

4  See,  ante,  §  525.  t;  Coekerell  v.  Henderson,  ST  Kan. 

r.Kan.    Code    Civ.     Proc,    §  10;       ."535,  50  L.  R.  A.  (N.  S.)  1,  105  Pac. 
Kan.  Gen.  Stats.  1901,  §4438.  443. 

695 


§530 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  II, 


the  complaint  in  accordance  with  well-settled  rules  of 
construction  and  interpretation,  and  when  that  is  done 
the  function  of  the  court  is  ended, — it  has  exhausted  its 
powers  in  this  regard.  The  court  can  not  compel  counsel 
to  adopt  any  particular  theory  of  the  cause, — some  cases 
hold  the  court  can  not  compel  counsel  to  adopt  any  theory 
at  all,  or  to  elect  between  one  of  two  theories  the  facts  set 
out  in  the  complaint  embrace,^ — or  to  adopt  the  theory 
of  the  trial  court ;  but  if  counsel  acquiesce  in  the  theory 
of  the  cause  adopted  or  suggested  by  the  trial  court,  and 
the  cause  is  tried  on  such  theory  of  the  case,  that  theory 
becomes  an  integTal  part  of  the  cause  the  same  as  though 
it  were  the  one  worked  out  and  presented  by  counsel,  and 
is  not  only  controlling  throughout  the  trial — as  to  evi- 
dence admissible,  the  amount  and  character  of  the 
evidence  required  to  establish  the  cause,  and  the  like, — 
but  also  on  appeal.^  If  the  court's  theory  of  the  cause 
ditfers  from  that  of  counsel,  and  is  not  satisfactory,  to 
the  latter,  to  save  his  rights  and  not  be  bound  by  the 
trial  court's  theory  of  the  cause,  due  objection  must  be 
entered  in  the  record,  and  proper  exceptions  taken  from 
time  to  time  as  the  trial  progresses.  While  the  question 
of  ''the  theory  of  the  case  on  appeal"  is  one  falling  under 
a  treatment  of  Appeal  and  Error — a  topic  not  within  the 
scope  of  this  treatise — it  may  not  be  amiss  to  refer  to 
some  of  the  many  cases  establishing  and  enforcing  the 
doctrine.^ 


1  See  Cockerell  v.  Henderson,  81 
Kan.  335,  50  L.  R.  A.  (N.  S.)  1,  105 
Pac.  443. 

2  Dubois  V.  Bowles,  55  Colo.  312, 
134  Pac.  112;  Crisp  v.  State  Bank 
of  Rolla  (N.  D.),  155  N.  W.  78. 

o  ARIZ.— T  r  e  V  i  s  v.  Ryan,  13 
Ariz.  120,  282.  108  Pac.  461,  114 
Pac.  557;  Arizona  Power.  Co.  v. 
Racine-Sattley  Co.,  13  Ariz.  283, 
114  Pac.  558.  ARK.  —  Jove  v. 
Urquhart,  102  Ark.  470,  Ann.  Gas. 


1914A,  351,  143  S.  W.  121.  CAL.— 
McBee  v.  Randall,  41  Cal.  136; 
White  V.  San  Rafael  &  S.  Q.  R. 
Co.,  50  Cal.  417;  Avaldan  v.  Noble, 
121  Cal.  216,  53  Pac.  559;  Barbour 
V.  Flick,  126  Cal.  628,  59  Pac.  122; 
Flinn  v.  Ferry,  127  Cal.  648,  60  Pac. 
434;  Bank  of  Visalia  v.  Dillonwood 
Lumber  Co.,  148  Cal.  18,  82  Pac. 
374;  Madison  v.  Octave  Oil  Co., 
154  Cal.  768,  99  Pac.  176;  Gervasio 
V.  Brookins,  156  Cal.  110,  103  Pac. 


696 


dl.  III.] 


THEORY  OF  TRIAL  COURT. 


§530 


Cause  tried  on  theory  answer  filed,  particular  issue 
raised,  and  the  like,  a  party  can  not  object  on  appeal,  for 
the  first  time,  that  there  was  no  answer  or  that  the  answer 


332;  Smithson  v.  Atchison,  T.  & 
S.  F.  R.  Co.,  174  Cal.  148,  162  Pac. 
Ill;  Pacific  Portland  Cement  Co. 
V.  Hopkins,  174  Cal.  251,  162  Pac. 
1016;  Noshkian  v.  Chisholm,  2  Cal. 
App.  496,  84  Pac.  312;  Ryan  v.  Oak- 
land Gas,  Light  &  Heat  Co.,  21  Cal. 
App.  14,  130  Pac.  693.  COLO.— 
Tubbs  V.  Roberts,  40  Colo.  498,  92 
Pac.  220;  Stratton  Cripple  Creek 
Min.  &  Devel.  Co.  v.  Ellison,  42 
Colo.  498,  94  Pac.  303;  Wooton 
Land  &  Fuel  Co.  v.  John,  60  Colo. 
305,  153  Pac.  686;  Ft.  Lyon  Canal 
Co.  V.  Bennett,  61  Colo.  Ill,  156 
Pac.  604.  IDAHO  —  Tolouse  v, 
Burkett,  2  Idaho  265,  13  Pac.  172; 
McVay,  In  re  Estate  of,  14  Idaho 
56,  93  Pac.  28.  MO.  — Carter  v. 
Butler,  264  Mo.  306,  Ann.  C  a  s. 
1917A,  483,  174  S.  W.  399.  MONT. 
— Durfee  v.  Harper,  22  Mont.  354, 
56  Pac.  582;  Plymouth  Gold  Min. 
Co.  V.  United  States  Fidelity  & 
Guaranty  Co.,  35  Mont.  23,  10  Ann, 
Cas.  951,  88  Pac.  565;  State  ex  rel. 
Hickey  v.  District  Court,  42  Mont. 
496,  Ann.  Cas.  1912B,  246,  113  Pac. 
472;  Moss  v.  Goodheart,  47  Mont. 
257,  131  Pac.  1071;  Smith  v.  Barnes, 
51  Mont.  202,  Ann.  Cas.  1917D,  330, 
149  Pac.  963;  Batch  v.  Helena 
Light  &  R.  Co.,  52  Mont.  517,  159 
Pac.  411.  NEB.— Smith  v.  Spauld- 
ing,  40  Neb.  339,  58  N.  W.  952; 
Parker  v.  Knights  Templers'  & 
Masons'  Life  Indem.  Co.,  70  Neb. 
268,  97  N.  W.  271;  Commercial 
State  Bank  v.  Ketchum,  1  Neb. 
Unof.  454,  96  N.  W.  614.  NEV.— 
McStacy  Supply  Co.  v.  Cook,  35 
Nev.  284,  132  Pac.  545.  N.  M.— Cad- 
well    V.    Higglnbotham,    20    N.    M. 


482,  151  Pac.  315.  OKLA.— Mor- 
rison V.  Atkinson,  16  Okla.  571,  8 
Ann.  Cas.  486,  85  Pac.  472;  Harris 
V.  First  Nat.  Bank,  21  Okla.  189,  95 
Pac.  781;  Hamilton  v.  Brown,  31 
Okla.  213,  120  Pac.  950;  Smith  v. 
Colson,  31  Okla.  703,  123  Pac.  149; 
Checote  v.  Hardridge,  31  Okla.  742, 
123  Pac.  846;  Coombs  v.  Cook,  35 
Okla.  326,  129  Pac.  698;  Advance 
Thresher  Co.  v.  Doak,  36  Okla. 
532,  129  Pac.  736;  Turley  v.  Fee- 
beck,  38  Okla.  257,  132  Pac.  889; 
Bouton  V.  Carson,  51  Okla.  579, 
152  Pac.  131;  Carpenter  v.  Roach 
(Okla.),  155  Pac.  237;  Burke  v. 
Smith  (Okla.),  157  Pac.  51; 
Primous  v.  Wertz  (Okla.),  162  Pac. 
481;  Buel  v.  St.  Louis  &  S.  F.  R. 
Co.  (Okla.),  163  Pac.  536;  Brown 
V.  Tull  (Okla.),  164  Pac.  785.  ORE. 
—Burning  v.  Walz,  42  Ore.  109,  71 
Pac.  662.  S.  D.— Noyes  v.  Brace, 
9  S.  D.  603,  70  N.  W.  846;  Graham 
V.  Silbie,  10  S.  D.  546,  74  N.  W. 
439;  Parrish  v.  Mahany,  12  S.  D. 
278,  76  Am.  St.  Rep.  604,  81  N.  W. 
295,  reversing  10  S.  D.  276,  66  Am. 
St.  Rep.  715,  73  Pac.  97;  Dal  v. 
Fischer,  20  S.  D.  426,  107  N.  W. 
534.  UTAH— Aaron  v.  Holmes,  35 
Utah  49,  99  Pac.  450;  Grow  v. 
Oregon  Short  Line  R.  Co.,  44  Utah 
160,  Ann  Cas.  1915B.  481,  138  Pac. 
398.  WASH.— Walker  v.  McNeill, 
17  Wash.  582,  50  Pac.  518;  State 
ex  rel.  Holgate  v.  Superior  Court, 
19  Wash.  114,  52  Pac.  522;  .Moals 
V.  De  Soto  Placer  Min.  Co..  :J3 
Wash.  302,  74  Pac.  470;  Sanders  v. 
Simpson  Mill  Co.,  34  Wash.  357, 
75  Pac.  974,  affirming  32  Wash.  627, 
73  Pac.  688;  Normile  v.  Thom.son, 


GOT 


§530 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  II, 


was  insufficient;  that  no  issue  was  raised  or  that  a  par- 
ticular issue  tried  was  not  involved;  that  the  matter 
found  was  not  in  issue,  and  the  like.^  But  this  rule  is  not 
applicable  to  an  appeal  from  a  judgment  dismissing  the 
action  on  sustaining  a  demurrer  to  the  complaint, — the 
question  involved  on  such  an  appeal  being  whether  the 
plaintiff  is  entitled  to  the  relief  prayed  for,  or  to  any 
substantial  relief;^  or  in  an  action  for  failure  to  dis- 
charge a  mortgage, — in  which  there  is  no  choice  of  reme- 
dies f  or  to  a  brief  seeking  to  support  a  judgment  prop- 
erh^  rendered  under  the  pleading  in  the  cause.'^ 


37  Wash.  465,  79  Pac.  1095;  Stand- 
ard Furniture  Co.  v.  Anderson,  38 
Wash.  582,  80  Pac.  813;  Smith  v. 
Pacific  Coal  &  Oil  Co.,  75  Wash. 
128,  134  Pac.  675;  L  i  n  d,  In  re 
Estate  of,  90  Wash.  10,  155  Pac. 
159.  WYO.— Jones  v.  Kepford,  17 
Wyo.  468,  100  Pac.  923. 

Theory  of  complaint  not  adopted 
by  the  trial  court,  need  not  be 
considered  on  appeal. — Woodward 
V.  Glenwood  Lumber  Co.,  171  Cal. 
513,  153  Pac.  951. 

4  See:  Green  v.  Lake  Superior  & 
P.  Fuse  Co.,  46  Cal.  408;  White  v. 
San  Rafael  &  S.  Q.  R.  Co.,  50  Cal. 
417;  Tullet  v.  Trainor,  53  Cal.  274; 
Spiers  v.  Duane,  54  Cal.  176;  Hor- 
ton  V.  Dominguez,  68  Cal.  642,  10 
Pac.  186;  Kirsch  v.  Kirsch,  83  Cal. 
635,  23  Pac.  1083;  Diefendorff  v. 
Hopkins,  95  Cal.  343,  28  Pac.  265, 
30  Pac.  549;  Riverside  Water  Co. 
V.  Gage,  108  Cal.  240,  41  Pac.  299; 
Illinois  Trust  &  Sav.  Bank  v.  Pa- 
cific R.  Co.,  115  Cal.  285,  47  Pac. 
60;  Sprigg  v.  Barber,  122  Cal.  573, 
55  Pac.  419;  Allstead  v.  Nichol, 
123  Cal.  594,  50  Pac.  452;"  Casey 
V.  Leggett,  125  Cal.  664,  58  Pac. 
264 :  Weidenmuller  v.  Stearns 
Ranchos  Co.,  128  Cal.  623,  61  Pac. 


374;  Krasky  v.  W^ollpert,  134  Cal. 
338,  66  Pac.  309;  Perry  v.  Angelus 
Hospital  Assn.,  172  Cal.  311,  156 
Pac.  449;  Bayly  v.  Lee,  174  Cal. 
137,  162  Pac.  96;  White  v. 
Spreckels,  10  Cal.  App.  287,  101 
Pac.  920;  Campbell,  In  re  Estate 
of,  12  Cal.  App.  707,  108  Pac.  669, 
676;  Clark  v.  Bell,  41  Cal.  App. 
326,  11  Cal.  App.  1037;  Roberts  v. 
Sierra  R.  Co.,  14  Cal.  App.  180,  111 
Pac.  519,  527;  Schroeder  v.  Mauzy, 
16  Cal.  App.  443,  118  Pac.  459; 
O'Reilly  v.  All  Persons,  29  Cal. 
App.  49,  154  Pac.  474;  Tolouse  v. 
Burkett,  2  Idaho  265,  13  Pac.  172; 
Backes  v.  T  •  impeter,  94  Neb.  824, 
144  N.  W.  809;  Howell  v.  Howell, 
77  Ore.  539,  152  Pac.  217;  Eckhart 
V.  Peterson,  94  Wash.  379,  162  Pac. 
551. 

Estoppel  of  party  on  appeal  to 
assume  attitude  inconsistent  with 
that  taken  by  him  in  the  trial 
court. — See  note,  8  Ann.  Cas.  487. 

5  Neilson  v.  San  Pete  County,  40 
Utah  560,  123  Pac.  334. 

<;  Morrill  v.  Title  Guaranty  &  Se- 
curity Co.,  94  Wash.  258,  163   Pac. 


T  First    Xat.    Bank    v.    H  i  n  k  1  o 
(Okla.),  162  Pac.  1092. 


698 


ell.  III.]  counsel's   theory  OF   CASE.  §  531 

Theory  of  trial  court  upon  which  the  trial  was  had, 
instructions  given,  findings  made,  or  verdict  rendered, 
will  be  adopted  by  the  appellate  court.*  The  reason 
alleged  being  that  ** where  parties,  without  adhering 
closely  to  the  written  pleadings,  proceed  without  objec- 
tion and  make  a  particular  cause,  and  the  court  without 
objection  allows  the  cause  to  go  to  the  jury,  the  cause 
thus  made  can  not  be  assailed  for  the  first  time  by  a 
motion  for  a  new  trial  on  assignment  of  error  in  the 
appellate  court,  on  the  ground  of  the  failure  of  proof."'*' 

§  531.  Counsel's  theory  of  the  case — In  general.  By 
counsel's  theory  of  the  case  is  to  be  understood  (1)  the 
well-worked  out  conception  as  to  the  grounds  upon  which 
his  client's  injuries  are  to  be  based,  and  (2)  his  concep- 
tion of  the  kind  of  relief  to  which  his  client  is  entitled; 
not  to  the  ** label"  he  may  put  upon  his  complaint  by  say- 
ing that  the  action  is  ex  contractu  or  ex  delicto,  or  any 
other  designation  as  to  the  nature  of  the  action.  Under 
the  reformed  judicature,  it  is  not  essential  that  counsel 

s  ALA.— Phillips  v.  Phillips,  186  v.  Sioux  County,  94  Neb.  826,  144 
Ala.  545,  Ann.  Cas.  1916D,  994,  65  N.  W.  779.  N.  D.— Thornhill  v. 
S.  E.  49.  CAL.— Streator  v.  Lin-  Olson,  31  N.  D.  81,  Ann.  Cas.  1917E. 
scott.  153  Cal.  285,  95  P  a  c.  42;  ^27,  L.  R.  A.  1916A,  493,  153  N.  W. 
National    Union    Fire    Ins.    Co.    v.      ^^^-      OKLA.— Watson    v.    Taylor, 

35  Okla.  768,  131  Pac.  922;  Brooks 
V.  Tyner,  38  Okla.  271,  132  Pac. 
683.  ORE.— Dennis  v.  Willamina. 
Pac.  R.  Co..  18  Colo.  600,  36  Am.  St.  ^ity  of.  80  Ore.  486.  157  Pac.  799; 
Rep.  309,  23  L.  R.  A.  812,  33  Pac.  Rasmussen  v.  Winters,  82  Ore. 
515;  International  Text-Book  Co.  v.  674,  162  Pac.  849.  WASH.— Paine 
Pratt  Mercantile  &  Pub.  Co.  v.  Port  of  Seattle,  70  Wash.  294, 
(Colo.),  158  Pac.  712.  CONN.—  126  Pac.  628;  Newsome  v.  Allen, 
Barber  v.  Morgan,  89  Conn.  583,  86  Wash.  678,  151  Pac.  Ill;  Haas 
191 6E,  102,  94  Atl.  984.  IDAHO—  v.  Washington  Water  Power  Co., 
Fouch  V.  Bates,  18  Idaho  374,  110  93  Wash.  291,  160  Pac.  594;  Gasch 
Pac.  265.  MONT.— Neary  v.  North-  v.  Rounds,  93  Wash.  317.  160  Pac. 
ern  Pac.  R.  Co.,  41  Mont.  480,  110      902. 

Pac.   226;    Wallace  v.  W'eaver,   47  '••Roberts    v.    Sierra    R.    Co.,    14 

Mont.  437,  133  Pac.  1099;  O'Hanlon  Cal.  App.  180.  Ill  Pac.  519,  527: 
V.  Ruby  Gulch  Min.  Co.,  48  Mont.  Clark  v.  Bell,  14  Cal.  App.  326,  11 
65,  135  Pac.  913.    NEB.— O'Connell      Pac.   1037. 

699 


Nason,  21  Cal.  App.  297,  131  Pac. 
755.    COLO. — Wadsworth  v.  Union 


§531 


CODE   PLEADING  AND   PRACTICE. 


[Pt.  II, 


shall  give  to  liis  complaint  any  particular  designation  or 
name  indicative  of  the  nature  of  the  action ;  all  that  he  is 
required  to  do  is  to  set  forth,  in  ordinary  language, 
clearly,  concisely,  and  distinctly,  the  facts  upon  which  he 
bases  his  cause  of  action.^  Some  of  the  cases  go  to  the 
extent  of  holding  that  he  need  not  reveal  in  his  complaint 
the  particular  class  of  action  to  which  his  case  belongs, - 
or  inform  the  defendant  whether  he  is  charged  with  a 
breach  of  contract  or  with  a  tort  or  wrong  ;^  and,  also, 
that  he  may  even  state  the  facts  in  such  a  manner  as  to 
give  his  cause  of  action  a  dual,  and  opposite,  character — 
e.  g.,  found  it  in  contract  and  in  tort — and  will  not  be 
compelled  at  the  trial  to  elect  whether  he  mil  proceed  to 
trial  upon  the  theory  that  the  cause  of  action  rests  in 
contract  or  in  tort.*  This  last  holding  is  thought  to  be 
fundamentally  "vvrong,  as  vdW  be  more  fully  shown  pres- 
ently,^ being  violative  of  the  well-recognized  and  neces- 
sary doctrine  that  counsel  can  not  at  one  and  the  same 
time  assert  inconsistent  theories  of  a  cause  of  action, 


1  Crowder  v.  Fordyce  Lumber 
Co.,  93  Ark.  392,  125  S.  W.  417; 
Akin  V.  Davis,  11  Kan.  5S0;  Kunz 
V.  Ward,  28  Kan.  132;  Chase  v. 
Atchison,  T.  &  S.  F.  R.  Co.,  70 
Kan.  546,  79  Pac.  153;  Cockerell 
V.  Henderson,  81  Kan.  335,  50 
L.  R.  A.  (N.  S.)  1,  105  Pac.  443; 
Simpson  v.  Bantley  Realty  Co.,  142 
Mo.  App.  490,  126  S.  W.  999;  Cen- 
tral American  Steamship  Co.  v. 
Mobile  &  O.  R.  Co.,  144  Mo.  App. 
43,  128  S.  W.  822;  Raymond  v. 
Blanegrass,  36  Mont.  449,  15 
L.  R.  A.  (N.  S.)  976,  93  Pac.  648; 
Johnson  v.  Girdwood,  143  N.  Y. 
660,  39  N.  E.  21,  affirming  an 
opinion  in  7  Misc.  651,  28  N.  Y. 
Supp.  151;  Graham  v.  Graham, 
134  App.  Div.  (N.  Y.)  777,  119 
N.  Y.  Supp.   1013;    McDononsh  v. 


Dillingham,  43  Hun  (N,  Y.)  493; 
Southern  R.  Co.  v.  Atlanta  Nat. 
Bank,  50  C.  C.  A.  558,  112  Fed. 
861,  56  L.  R.  A.  546. 

Not  good  by  statute  under  which 
framed,  complaint  may  be  sus- 
tained if  it  sets  forth  a  good  cause 
of  action  at  common  law,  has  been 
held  in  Kneale  v.  Price,  21  Mo. 
App.  295. 

2  Peterson  v.  Stoughton  State 
Bank,  78  Wis.  113,  47  N.  W.  368. 

3  Lapp  V.  Stanton.  116  Md.  197, 
Ann.  Cas.  1913C,  755,  81  Atl.  675. 

4  Cockerell  v.  Henderson,  81  Kan. 
335,  50  L.  R.  A.  (N.  S.)  1,  105  Pac. 
443. 

5  See,  post,  §533,  footnote  4: 
see,  also.  Lane  v.  Cameron,  36 
Wis.  603,  1  Am.  Neg.  Cas.  743. 


700 


ch.  III.]  counsel's  theory  of  case.  §  531 

either  in  his  complaint  or  in  the  trial  of  the  cause;*'  and 
also  shows  a  failure  to  grasp  and  apply  the  fundamental 
concept  of  reformed  judicature,  to  recognize  the  funda- 
mental distinctions  adhering  in  the  very  nature  of  actions 
ex  contractu  and  ex  delicto'^ — which  distinctions  are  not 
abolished  by  procedural  codes, ^  and  to  take  cognizance 
of  the  fact  that  the  well-established  and  universally  rec- 
ognized and  applied  rules  of  evidence — which  are  not 
abolished,  or  changed,  or  modified  in  any  way,  by  re- 
formed judicature — require  evidence  of  distinct  and  dif- 
ferent character  to  make  out  a  cause,  respectively,  in 
breach  of  contract  and  in  tort  or  wrong.^  In  short,  such 
decisions  have  a  tendency  to  destroy  the  fundamental 
principles  of  the  science  of  law,  and  to  reduce  the  law 
to  that  chaotic  condition  we  are  told  prevailed  before  the 
dawn  of  creation,  when  everything  "was  without  form, 
and  void,"^**  and  have  the  effect  to  restore  that  ''dark- 
ness" upon  the  science  of  jurisprudence  which  originally 
was  ''upon  the  face  of  the  deep"^^ — are  mere  "prece- 
dents," not  law,  because  a  precedent  is  "law"  only  when 

6  Smith   Sand   &   Gravel   Co.   v.  It  is  further  said,  however,  that 
Corbin,  89  Wash.  43,  154  Pac.  150.  if  the   facts   of  the   two  or  more 

7  See,  ante,  §  525,  causes  of  action  are  the  same,  and 

8  See,  ante,  §  524.  if  the  ,.^^^^3  ^^^  ^^^  ^^^^^^  ^^^  .^ 

9  Cockerell    v.    Henderson,   criti-      tv,^    ^i^;,.+  w     i  ..        ^     ^ 

'  the    plaintiff    does    not    ask    for 

cised  in  the  text,   is   seemingly      ,i^„ui„ ,,•  pi*       ,     ,      ^t. 

double  relief,  but  only  for  the  re- 
opposed  to  the  former  holding  of      ^■f  „,i,-„,    ^vi, 

°  lief  which  either  cause  of  action 

the  same  court  in  a  case  not  over-      „,^„ia  „,-,,    v™   *i,       *t,  i, 

would  give  him,  then  there  can  be 

ruled,  in  which  it  is  said:      "The •,        „  .  t,       ^t 

'  no   good   reason   given   why   the 

facts   may   sometimes   constitute      ^i„:„fi«  „  v,  ^     1  ^   1  •     j   * 

plaintiff  should  be  required  to 
both  a  cause  of  action  on  contract,      ^i„„i.    +„    „u-^u        i-  p    i,  .^ 

elect    to    which    relief    he    would 
and  a  cause  of  action  on  tort,  or      +„,  „   ^    „,u„tu^    v,      ^  u       n  i  • 

take,  or  whether  he  could  call  his 

two  or  more  of  either;   and  then,      „„»:„„ „„*„„*.         e      *„  *  -. 

'      action  on  contract  or  for  tort.  — 
if  the  relief  for  the  two  or  more      j^ 

causes  of  action  are  inconsistent, 

the  plaintiff  would  be  required  to  ™^'    ^^^°'    overlooks    the    dis- 

elect  which  of  the  same  he  would      t'"^^'°°    between    the    proof    re- 

x„,.^ ,    •      „„„„    „  „,■■    t^^      quired  on  breach  of  contract  and 

take,    and    in   no   case   could    the 

plaintiff   have    double    relief   for      °^   *"''*• 

substantially    the    same    thing.—  10  Genesis  I,  2. 

Akin  V.  Davis,  11  Kan.  580.  n  Id. 

701 


§532 


CODE   PLEADING   AND    ITwACTICE. 


[I't.  H, 


the  decision  is  made  in  aceordaiiee  with  the  well-estal)- 
lished  and  fundamental  principles  of  our  system  of 
jurisprudence. 


§  532. 


Necessity  for.    It  is  thouiiht  that  the  hohl- 


ing  of  the  courts  exempting  counsel  from  the  obligation 
of  giving  to  their  cause  of  action  any  particular  charac- 
terization as  to  the  pleader's  conception  of  the  nature  of 
the  action,  or  the  defendant  notice  whether  the  cause  of 
action  is  for  the  breach  of  a  contract  or  for  a  tort  or 
wrong,  as  indicated  in  the  preceding  section,  relates 
merely  to  the  initiation  of  the  proceeding,  and  the  sufli- 
ciency  of  the  complaint  on  a  general  demurrer  ;^  and  that 
it  has  no  reference  to  the  final  form  and  sufficiency  of 
the  complaint  on  the  trial,  as  it  may  be  made  finally  to 
appear  after  special  demurrer  for  insufficiency  on  the 
ground  complaint  seeks  to  found  the  cause  on  either  of 
two  theories  of  liability  f  motion  to  strike  out  as  surplus- 
age the  allegations  as  to  one  branch  of  a  complaint  seek- 
ing to  found  liability  on  either  of  two  theories  of  liabil- 
ity;^ motion  to  make  more  definite  and  certain,  wliere 
the  complaint  does  not  disclose  to  the  defendant  on  what 
ground  he  is  sought  to  be  made  liable,^  and  the  like.    The 


1  Demurrer  does  not  lie  for  want 
of  theory  of  the  cause  manifest  in 
the  complaint.  —  Scott  v.  Cleave- 
land,  C.  C.  &  St.  L.  R.  Co.,  144 
Ind.  125,  32  L.  R.  A.  154,  8  Am. 
Neg.  Cas.  223,  43  N.  E.  133;  Hol- 
liday  v.  Perry,  38  Ind.  App.  598,  78 
N.  E.  877. 

On  general  demurrer,  if  the 
complaint  entitles  the  plaintiff  to 
any  relief,  either  legal  or  equit- 
able, the  demurrer  will  not  be 
sustained  merely  because  the  com- 
plaint is  drawn  on  a  theory  other 
than  that  on  which  the  plaintiff  is 
entitled  to  relief. — Bell  v.  Bank  of 
California,  153  Cal.  234,  238,  94 
Pac.  889, 


2  Kewaunee  County  v.  Decker, 
30  Wis.  634;  Bieri  v.  Fonger,  139 
Wis.  150,  120  N.  W.  862;  Hall  v. 
Bell,  143  Wis.  296,  127  N.  W.  967. 

3  Marsh  v.  Webber,  13  Minn. 
109;  Neftel  v.  Lightstone,  77  N.  Y. 
96. 

4  Scott  V.  Cleaveland,  C.  C.  & 
St.  L.  R.  Co.,  144  Ind.  125,  32 
L.  R.  A.  154,  8  Am.  Neg.  Cas.  223, 
43  N.  E.  133;  State  ex  rel.  Millice 
V.  Peterson,  36  Ind.  App.  269,  75 
N.  E.  602;  Marsh  v.  Webber,  13 
Minn.  109;  Neftel  v.  Lightstone, 
77  N.  Y.  96;  Atwill  v.  Le  Roy,  4 
Abb.  Pr.  (N.  Y.)  438,  15  How.  Pr. 
227;  Jackson  v.  Jackson,  17  Ore. 
110,  19  Pac.  847;  Corbett  v.  Wrcnn, 

■02 


ell.  III.]  counsel's  THEORY — NECESSITY  FOR.  §532 

doctrine  as  thus  interpreted  is  doubtless  based  upon  the 
very  proper  theory  that  it  is  the  function  of  the  court, — 
Avhere  the  complaint  is  sufficient  to  entitle  the  phuntiff  to 
any  relief, — to  construe  and  interpret  the  complaint  and 
ascertain  and  determine  the  character  of  the  cause  of 
action  and  the  nature  of  the  relief  to  which  the  plaintiff 
is  entitled  from  an  analysis  of  the  averments  in  the  com- 
plaint,^ taken  in  connection  with  the  relief  demanded." 
Thus,  it  has  been  said  that  the  fact  that  it  is  difficult  to 
tell  which  of  two  theories  the  complaint  is  susceptible  of 
is  the  true  one  mil  not  render  the  complaint  vulnerable 
to  a  special  demurrer  for  want  of  facts,  where  the  com- 
plaint states  facts  sufficient  to  constitute  a  cause  of  action 
consistent  with  either  theory;"  and  where  a  complaint 
was  evidently  framed  with  the  view  of  enforcing  the 
plaintiff's  right  to  redeem  shares  of  stock  pledged  as 
security,  rather  than  to  obtain  damages  for  the  conver- 
sion thereof,  although  the  action  could  not  be  maintained 
as  an  action  in  claim  and  delivery  under  the  statute,  not 
being  aimed  at  specific  shares  of  stock  alleged  to  be  in 
the  defendant's  possession,*^  yet  that  '* inasmuch  as  under 
our  system  the  court  may  grant  any  relief,  legal  or  equi- 
table, to  which  a  party  may  be  entitled,  the  mere  fact  that 
plaintiff,  in  framing  his  complaint,  proceeded  upon  a  cer- 
tain theory  of  rights,  affords  no  grounds  for  sustaining 
a  general  demurrer,  if  the  complaint  alleges  facts  which 

25  Ore.  305,  35  Pac.  658;   Lane  v.  W.  Valley   Traction  Co.,   49   I  n  d. 

Cameron,  36  Wis.  603,  1  Am.  Neg.  App.  288,  97  N.   E.   192. 

Cas.    743;    Peterson   v.    Stoushton  'Oolitic  Stone  Co.  v.  Ridge,  169 

State  Bank,  78  Wis.  113,  47  N.  W.  ^"d-  ^"^3,  83  N.  E.  246. 

368;  Bruheim  V.  Stratton,  145  Wis.  «  Shares    of    stock    being    in- 

271,   129  N.  W.   1092.  tangible    property,    an    action    of 

s'see,   ante.   §  527,   footnote  8.  "^^^"^  ^"^^  ^^^^^^^^  ^""  °«t  "«  ^""^ 

their  recovery,  unless  it  is  aimed 
6McDonough   V.   Dillingham,   43      ^^    ^  ^  ^    ^^^^.^^    represented    in    a 

Hun  (N.  Y.)  493.  ^   «    •♦  a        a     ■        .a  *■« 

'  definite   and   a   designated    certifl- 

See,  also,  ante,  §  527,  footnote  9.      cate.— Ashton  v.  Heydenfeldt,  124 
See    Mercia   v.   Ft.   Wayne    &      Cal.  14,  56  Pac.  624. 

703 


§533 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  II, 


entitle  to  relief  upon  some  other  theory. '  '^  But  there  are 
cases  in  which,  as  we  shall  see  presently,  a  wrong  theory 
of  the  case  is  fatal  to  any  recovery.^'' 

§  533.    Nature  of  action  and  relief  entitled  to. 

We  have  already  seen^  that  want  of  a  theory  of  the  nature 
of  a  cause  of  action  and  of  the  relief  to  which  the  plaintiff 
is  entitled,  or  even  a  wrong  theory  in  this  regard,  may  not 
render  the  complaint  vulnerable  to  a  general  demurrer, 
or  defeat  the  plaintiff's  right  of  action;  but  there  are 
other,  and  far  more  numerous,  instances  in  which  a 
theory  as  to  the  nature  of  the  cause  of  the  action  on  tlie 
part  of  counsel,  carried  into  the  complaint  certainly  and 
definitely,  is  highly  essential.  It  has  already  been 
shown  that  there  is  a  fundamental  distinction  between 
actions  ex  contractu  and  ex  delicto,  founded  on  the  very 
nature  of  things;-  and  this  distinction  not  having  been 
abolished, — being  in  fact  unabolishable, — by  the  proce- 
dural codes,^  it  follows  that  counsel  should  have  a  well- 
digested  theory  of  the  nature  of  the  cause  of  action,  and 
present  that  theory  clearly  in  his  complaint,  and  must 
not  unite  incongruous  causes  of  action,^ — e.  g.,  a  cause 


0  Bell  V.  Bank  of  California,  153 
Cal.  234,  238,  94  Pac.  889. 

10  See,  post,  §  534. 

1  See,  ante,  §  532. 

2  See,  ante,  §  525. 

o  CAL.  —  Lubert  v.  Chauviteau, 
3  Cal.  458,  58  Am.  Dec.  415.  IND. 
— Cincinnati,  W.  &  M.  R.  Co.  v. 
Harris,  61  Ind.  290.  N.  Y.— Austin 
V.  Rawdon,  44  N.  Y.  63;  Andrews 
V.  Bond,  16  Barb.  633;  Allen  v. 
Allen,  52  Hun  398,  5  N.  Y.  Supp. 
518.  S.  D.— Jones  v.  Winsor,  22 
S.  D.  480,  118  N.  W.  715.  W^IS.— 
Howland  v.  Needham,  10  Wis. 
496;  Kewaunee  County  v.  Decker, 
30  Wis.  642;  Pierce  v.  Carey,  37 
Wis.  232.  FED.— Whiting"  Mfg.  Co. 
V.  Memphis  &  Ohio  River  Packet 
Co.,  21  Fed.  896. 


4  "It  would  certainly  be  an 

anomalous  and  hitherto  unknown 
condition  of  the  law  of  pleading, 
were  it  established  that  the  plain- 
tiff, in  a  civil  action,  could  file  and 
serve  a  complaint  the  particular 
nature  and  object  of  which  no  one 
could  tell,  but  which  might  and 
should  be  held  good,  as  a  state- 
ment of  two  or  three  or  more  dif- 
ferent and  inconsistent  causes  of 
action,  as  one  in  tort,  one  upon 
money  demand  on  contract,  and 
one  in  equity,  all  combined  or 
fused  and  moulded  into  one  count 
or  declaration,  so  that  the  defen- 
dant must  await  the  accidents  and 
events  of  trial,  and  until  the  plain- 
tiff's proofs  are  all  in  before  being 
informed,  with  any  certainty  or 


704 


ch.  III.] 


THEORY  AS  TO  NATURE  OF  ACTION. 


§533 


of  action  for  money  had  and  received  with  a  cause  of 
action  for  conversion,^  or  contract  with  tort.^    Such  a 


(lefinUeness,  what  he  was  called 
upon  to  meet.  The  proposition 
that  a  complaint,  or  any  single 
count  of  it,  may  be  so  framed  with 
a  double,  treble,  or  any  number  of 
aspects  looking  to  so  many  dis- 
tinct and  incongruous  causes  of 
action,  in  order  to  hit  the  exi- 
gencies of  the  plaintiff's  case,  or 
any  possible  demands  of  his 
proofs  at  the  trial,  we  must  say, 
strikes  us  as  something  exceed- 
ingly novel  in  the  rules  of  plead- 
ing. We  do  not  think  it  is  the 
law." — Dixon,  C.  J.,  in  Kewaunee 
County  V.  Decker,  30  Wis.  624, 
quoted  and  approved  in  Jones  v. 
Winsor,  22  S.  D.  480,  118  N.  W. 
716;  Pierce  v.  Carey,  37  Wis.  232. 

5  Jones  V.  Winsor,  22  S.  D.  480, 
118  N.  W.  716. 

•i  See,  ante,  §  525. 

Rule  applies  not  only  to  actions 
ex  contractu  and  actions  ex  de- 
licto, but  also  to  the  various 
actions  ex  contractu,  —  e.  g.,  an 
action  on  a  bill  of  exchange  as  an 
accepted  bill,  and  an  action 
founded  upon  a  breach  of  a  prom- 
ise to  accept;  the  evidence  neces- 
sary to  support  the  one  or  the 
other  is  materially  diffe:ent, — 
and  the  like.  In  support  of  this 
contention  see,  among  other 
cases:  ALA. — Cook  v.  Bloodgood, 
7  Ala.  6So;  Mobile  Life  Ins.  Co. 
v.  Randall,  74  Ala.  170;  Belisle  v. 
Clark,  49  Ala.  98;  Whilden  v. 
Merchants'  &  Planters'  Nat.  Bank, 
64  Ala.  1,  38  Am.  Rep.  1;  Wilson 
V.  Stewart,  69  Ala.  302;  Prout  v. 
Webb,  87  Ala.  593,  9  So.  190;  Cap- 
ital City  Water  Co.  v.  Mont- 
gomery, 92  Ala.  3G6,  9  So.  339; 
Smith    V.    East    Tennessee,    V.    & 


G.  R.  Co.,  98  Ala.  154,  13  So.  784; 
Louisville  &  N.  R.  Co.  v.  Brinker- 
hoff,  119  Ala.  528,  24  So.  885; 
Brooks  V.  Romano,  149  Ala.  301,  42 
So.  819;  Carpenter  v.  Walker,  170 
Ala.  659,  Ann.  Cas.  1912D,  863,  2 
N.  C.  C.  A.  371,  54  So.  60.  ARK.— 
Tordyce  v.  Nix,  58  Ark.  136,  23 
S.  W.  967.  CAL.— Stark  v.  Well- 
man,  96  Cal.  400,  31  Pac.  259; 
Morse  v.  Steele,  149  Cal.  303,  306, 
86  Pac.  693.  MICH.  —  Carter  v. 
Glass,  44  Mich.  154,  38  Am.  Rep. 
240,  6  N.  W.  200;  Hoey  v.  Harty, 
48  Mich.  191,  12  N.  W.  44; 
Manistee  Nav.  Co.  v.  Louis  Sands 
Salt  &  L.  Co.,  174  Mich.  1,  140 
N.  W.  565.  MINN.— Minneapolis 
Harvester  Works  v.  Smith,  30 
Minn.  399,  16  N.  W.  462.  N.  Y.— 
Atwill  v.  Le  Roy,  4  Abb.  Prac. 
438,  15  How.  Pr.  227;  Roth  v. 
Palmer,  27  Barb.  652;  Booth  v. 
Farmers'  &  Merchants'  Nat.  Bank, 
65  Barb.  457,  1  Thomp.  &  C.  45; 
Central  Gas  &  Electric  Fixtures 
Co.  V.  Sheridan,  1  Misc.  386,  22 
N.  Y.  Supp.  76;  Zrskowski  v. 
Mach,  15  Misc.  243,  36  N.  Y.  Supp. 
421.  WIS.  —  Brown  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  54  Wis.  342, 
41  Am.  Rep.  41.  11  N.  W.  356,  911; 
Wheratt  v.  Ellis,  58  Wis.  625,  17 
N.  W.  301;  Fifield  v.  Sweeny,  62 
Wis.  204,  22  N.  W.  416;  McKeon 
V.  Chicago,  M.  &  St.  P.  R.  Co.,  94 
Wis.  477,  59  Am.  St.  Rep.  910,  35 
L.  R.  A.  252,  69  N.  W.  175;  Law 
V.  Frawley,  102  Wis.  373,  78  N.  W. 
593.  FED.— Boyce  v.  Edwards,  29 
U.  S.  (4  Pet.)  Ill,  122,  7  L.  Ed. 
779,   803. 

"All  that  goes  to  the  adminis- 
tration of  justice  should  be 
definite   and   certain.     This   is   al- 


I  Code  PI.  and  Pr.— 45 


705 


§533 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  II, 


theory  of  the  cause,  carried  clearly  into  the  complaint,  is 
highly  important  in  aiding  to  determine  among  other 
things:  (1)  The  right  of  the  plaintiff  to  damages,  more 
than  nominal,^  exemplary  or  punitive  damages,"^  and  the 
measure  of  damages  in  the  particular  cause ;^   (2)   the 


most  equally  essential  to  the  claim, 
the  defense,  and  the  judgment. 
When  these  become  vague  and 
loose,  and  the  administration  of 
justice  becomes  vague  and  loose, 
with  a  tendency  to  rest,  not  so 
much  on  known  and  fixed  rules  of 
law,  as  on  capricious  judgment  of 
the  peculiarities  of  each  case — on  a 
dangerous  and  eccentric  sense  of 
justice,  largely  personal  to  the 
judges,  varying  as  cases  vary, 
rather  than  on  abiding  principles 
of  right,  controlling,  equally,  the 
judgments  of  courts  and  the  rights 
of  suitors.  And  it  Is  time  that 
those  who  administer  the  Code 
should  recur  to  its  policy  of  plain 
and  direct  certainty,  and  rescue 
it  from  prostitution  to  uncertain 
administration,  to  duplicity  and 
ambiguity,  and  all  the  judicial 
evils  of  loose  and  uncertain  ad- 
ministration, more  dangerous  to 
even  and  uniform  justice  than  the 
worst  technicalities  of  the  most 
intricate  system.  Simplicity,  not 
uncertainty,  is  the  object  of  the 
Code,  and  pleadings  under  it 
should  be  as  certain  in  substance 
as  they  were  before  it — more  cer- 
tain in  form,  because  freed  from 
technical  formality.  .  .  .  This 
distinction  of  actions  in  tort  and 
on  contract  is  as  essential  under 
our  present  practice  as  it  ever 
was." — Dixon,  C.  J.,  in  Kewaunee 
County  V.  Decker,  30  Wis.  624; 
approved  and  followed  in  Cooke 
V.  Northern  Pac.  R.  Co.,  22  N.  D. 
266,  133  N.  W.  303;   Jones  v.  Win- 


sor,  22  S.  D.  480,  118  N.  W.  716; 
Pierce  v.  Carey,  37  Wis.  624. 

7  Fort  Smith  &  W.  R.  Co.  v. 
Ford,  34  Okla.  575,  41  L.  R.  A. 
(N.   S.)    745,   126   Pac.   745. 

8  GA. — Seals  v.  Augusta  South- 
ern R.  Co.,  102  Ga.  817,  29  S.  E. 
116.  ILL.— Illinois  Cent.  R.  Co.  v. 
Chambers,  71  111.  519.  LA.— Dave 
V.  Morgan's  L.  &  T.  R.  Co.,  47  La. 
Ann.  576,  17  So.  128.  M  I  S  S.— 
Heirn  v.  McCaughan,  32  Miss. 
17,  66  Am.  Dec.  588;  Mem- 
phis &  C.  R.  Co.,  44  Miss.  466,  7 
Am.  Rep.  699.  MO.— Book  v.  Chi- 
cago, B.  &  Q.  R.  Co.,  85  Mo.  App. 
76.  N.  C— Cable  v.  Southern  R. 
Co.,  122  N.  C.  892,  29  S.  E.  377; 
Hutchinson  v.  Southern  R.  Co., 
140  N.  C.  123,  6  Ann.  Gas.  22,  52 
S.  E.  263.  OKLA.— Fort  Smith  & 
W.  R.  Co.  V.  Ford,  34  Okla.  575,  41 
L.  R.  A.  (N.  S.)  745,  126  Pac.  745. 
TEX.— International  &  G.  N.  R. 
Co.  V.  Terry,  62  Tex.  380,  50  Am. 
Rep.  529.  WIS.— Hacker  v.  Heiney, 
111  Wis.  320,  87  N.  W.  249. 

9  CAL.  —  Lubert  v.  Chauviteau, 
3  Cal.  458,  58  Am,  Dec.  415.  KAN. 
— Union  Pac.  R.  Co.  v.  Shook,  3 
Kan.  App.  710,  44  Pac.  685. 
MASS.— Ellis  v.  Brockton  Publish- 
ing Co.,  198  Mass.  543,  126  Am.  St. 
Rep.  454,  15  Ann.  Gas.  83,  84  N.  E. 
1018.  MICH.— Carter  v.  Glass,  44 
Mich.  154,  38  Am.  Rep.  240,  6  N.  W. 
200.  S.  C. — Pickens  v.  South  Caro- 
lina &  G.  R.  Co.,  54  S.  C.  498,  32 
S.  E.  567.  WIS.— Brown  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  54  Wis.  432, 
41    Am.    Rep.   41,  7  Am.   Ncg.  Cas. 

706 


ch.  III.] 


THEORY  AS  TO  NATURE  OF  ACTION. 


§533 


right  of  the  defendant  to  a  counter-claim  or  to  a  set-oif /* 
or  to  an  exemption^^  or  to  arrest^^  on  execution,  and 
whether  all  the  persons  who  are  necessary  parties  have 
been  brought  in;^^  (3)  the  sufficiency  of  the  e\ddence 
introduced  to  warrant  a  judgnient,^^  and  whether  there 
should  be  a  nonsuit  or  the  direction  of  a  verdict  ;^^  (4)  the 
sufficiency  or  propriety  of  instructions  asked  or  given  ;^^ 
(5)  the  limitation  of  action  under  the  statute  of  limita- 
tions— when  the  action  should  be  begun  ;^^  (6)  variance 


203,  11  N.  W.  356;  Gatzow  v. 
Beuning,  106  Wis.  1,  80  Am,  St. 
Rep.  17,  49  L.  R.  A.  475,  81  N.  W. 
1003;  Panldft  v.  H  i  n  k  1  e  y,  141 
Wis.  147,  24  L.  R.  A.  (N.  S.)  1160, 
123  N.  W.  625. 

10  Haupt  V.  Ames,  26  App.  Div. 
(N.  Y.)  550,  50  N.  Y.  Supp.  495; 
Stoneman  v.  Van  Vetchen,  46  App. 
Div.  (N.  Y.)  370,  61  N.  Y.  Supp. 
513;  affirmed,  156  N.  Y.  666,  59 
N.  E.  1131;  Lange  v.  Schile,  117 
App.  Div.  (N.  Y.)  233,  101  N.  Y. 
Supp.  1080;  Frick  v.  Freudenthal, 
45  Misc.  (N.  Y.)  348,  90  N.  Y. 
Supp.  344;  Carroll  v.  Sharp,  67 
Misc.  (N.  Y.)  254,  122  N.  Y.  Supp. 
694. 

11  Gentry  v.  Purcell,  84  Ind.  83; 
Jewett  Bros.  v.  Huffman,  14  N.  D. 
110,  103  N.  W.  408;  Jewett  v. 
Ware,  107  Va.  802,  60  S.  E.  131. 

12  Forsythe  v.  Wastenaw  Circuit 
Judge,  180  Mich.  63,  147  N.  W. 
549,  sub  nom.  Forsythe  v.  Kinne, 
L.  R.  A.  1915A,  706;  Goodwin  v. 
Griffis,  88  N.  Y.  629;  Dugan  v. 
Read,  167  Pa.  St.  393,  37  Atl.  369; 
Sweeny  v.  Vrooman,  69  Wis.  278, 
19  N.  W.  46. 

See,  also,  authorities  cited  in 
note,  L.  R.  A.  1915A,  706,  and 
especially  authorities  in  last 
paragraph  of  col.  1,  p.  708. 


13  Gaither  v.  Bauernschmidt,  108 
Md.  1,  7,  69  Atl.  425;  Slutts  v. 
Chafee,  48  Wis.  617.  4  N.  W.  753. 
See  Hanley  v.  Wilson,  137  Cal.  273, 
92  Am.  St.  Rep.  160,  58  L.  R.  A. 
941,  70  Pac.  21. 

14  Cooke  V.  Northern  Pac.  R. 
Co.,  22  N.  D.  266,  133  N.  W.  303. 

15  Fremont,  E.  &  M.  V.  R.  Co. 
V.  Hagbald,  72  Neb.  773,  4  L.  R.  A. 
(N.  S.)  254,  101  N.  W.  1035,  106 
N.  W.  1041;  Reed  v.  Chicago,  B. 
&  Q.  R.  Co.,  84  Neb.  8,  120  N.  W. 
442;  Sparman  v.  Keim,  83  N.  Y. 
245,  9  Abb.  N.  C.  1,  reversing  44 
N.  Y.  Super.  Ct.  Rep.  (12  Jones 
&  S.)  163;  Ward  v.  St.  Vincent's 
Hospital,  39  App.  Div.  (N.  Y.)  624, 
6  Am.  Neg.  Rep.  164,  57  N.  Y. 
Supp.  784,  reversing  23  Misc.  91, 
50  N.  Y.  Supp.  466. 

16  Miller  v.  Miller,  17  Ind.  .\pp. 
605,  3  Am.  Neg.  Rep.  372,  47  N.  E. 
338;  York  v.  Farmers'  Rank,  105 
Mo.  App.  127,  79  S.  W.  968; 
Sweeney  v.  Vroman,  60  Wis.  278, 
19  N.  W.  46. 

17  See:  ARK.— St.  Louis,  I.  M. 
&  S.  R.  Co.  V.  Sweet.  63  Ark.  563, 
2  Am.  Neg.  Rep.  295,  49  S.  W.  463. 
CAL.— Miles  v.  Thorn,  38  Cal.  335. 
99  Am.  Dec.  384;  Link  v.  Jarvis,  5 
Cal.  ITnrep.  750,  33  Pac.  206.  IND. 
— Burns  v.  Barenfield,  84  Ind.  43. 


707 


§533 


CODE  PLEADING  AND   PRACTICE. 


[Ft.  II, 


between  the  proof  and  the  pleading ;^s  (7)  whether  an 
amendment  to  the  complaint  proposed  or  made  changes 
the  nature  of  the  cause  of  action,  or  introduces  a  new 
cause  of  action  ;i''  (8)  whether  the  complaint  contains 
the  necessary  allegations  to  state  a  cause  of  action;-" 
(9)   whether  the  action  is  one  which  an  assignee  can 


I  O  W  A— Blackett  v.  Zeigler,  147 
Iowa  167,  173,  125  N.  W.  874. 
KAN. — Frick  v.  Larned,  50  Kan. 
776,  32  Pac.  383;  Guernsey  v. 
Davis.  67  Kan.  378,  73  Pac.  101; 
Missouri,  K.  &  T.  R.  Co.  v.  Hutch- 
ings,  78  Kan.  758,  99  Pac.  230; 
Washborn  v.  Llnscott  State  Bank, 
87  Kan.  668,  125  Pac.  17.  LA.— 
Kohn  V.  Carrolton,  10  La.  Ann. 
719;  St.  Geme  v.  Boimare,  117  La. 
232,  41  So.  557.  MD.— Duckett  v. 
National  Mechanics'  Bank,  86  Md. 
400,  411,  63  Am.  St.  Rep.  513, 
522-3,  39  L.  R.  A.  84,  89-90,  38  Atl. 
983.  NEB. — Denman  v.  Chicago, 
B.  &  Q.  R.  Co.,  52  Neb.  140,  71 
N.  W.  967.  WIS.— Boyd  v.  Mutucl 
Fire  Assoc,  116  Wis.  155,  96  Am. 
St.  Rep.  948,  61  L.  R.  A.  918,  90 
N.  W.  1086;  Pietsch  v.  Milbrath, 
123  Wis.  467,  107  Am.  St.  Rep. 
1017,  68  L.  R.  A.  945,  102  N.  W. 
342;  Rowell  v.  Smith,  123  Wis.  510, 
3  Ann.  C  a  s.  773,  103  N.  W.  1; 
Charmley  v.  Charmley,  125  Wis. 
297,  307,  110  Am.  St.  Rep.  827,  103 
Ts'.  W.  1106;  Ott  V.  Hood,  152  Wis. 
97,  44  L.  R.  A.  (N.  S.)  524,  139 
N.  W.   762. 

See  notes,  12  Am.  Dec.  372;  99 
Am.  Dec.  389. 

IS  Butler  v.  Collins,  11  Cal.  391; 
Haynie  v.  Sites,  56  Colo.  115,  138 
Pac.  42;  Smith  v.  McCarthy,  39 
Kan.  308,  18  Pac.  204;  Nelson  v. 
Great  Northern  R.  Co.,  28  Mont. 
297,  72  Pac.  642. 

7 


19  Link  V.  Jarvis,  5  Cal.  Unrep. 
750,  33  Pac.  206;  Johnson  v.  Cum- 
mings,  12  Colo.  App.  17,  55  Pac. 
269;  Lane  v.  Cameron,  38  Wis.  603, 
1  Am.  Neg.  Cas.  643;  Johnson  v. 
Charles  Abresch  Co.,  123  Wis.  130, 
107  Am.  St.  Rep.  995,  68  L.  R.  A. 
934,  101  N.  W.  395;  Atlantic  &  Pac. 
R.  Co.  V.  Laird,  164  U.  S.  393, 
400-1,  41  L.  Ed.  485,  487-8,  17  Sup. 
Ct.  Rep.  120,  affirming  58  Fed.  760, 
7  C.  C.  A.  489,  15  U.  S.  App.  248. 

20  IND.— Pittsburgh,  C.  C.  &  St. 
L.  R.  Co.  V.  Street,  26  Ind.  App. 
224,  59  N.  E.  404;  Pittsburgh,  C.  C. 
&  St.  L.  R.  Co.  V.  Coll,  37  Ind.  App. 
232,  76  N.  E.  816.  KY. — McMurtry 
V.  Flentucky  Cent.  R.  Co.,  84  Ky. 
4C2,  1  S.  W.  815.  MASS.— Gorham 
V.  Grosse.  117  Mass.  442;  Robinson 
V.  Northampton  St.  R.  Co.,  157 
Mass.  224,  32  N.  E.  1.  MICH.— 
Church  V.  Anti-Kalsomine  Co., 
118  Mich.  219,  76  N.  W.  282. 
MO. — Yeater  v.  Hines,  24  Mo.  App. 
619.  NEB.— Fremont,  E.  &  M.  V.  R. 
Co.  V.  Hagbland,  72  Neb.  773,  4 
L.  R.  A.  (N.  S.)  254,  101  N.  W. 
1033,  106  N.  W.  1041.  N.  Y.— Busch 
V.  Interborough  Rapid  Transit  Co., 
110  App.  Div.  (N.  Y.)  705,  96  N.  Y. 
Supp.  747,  reversing  93  N.  Y.  Supp. 
372;  affirmed,  187  N.  Y.  388,  10 
Ann.  Cas.  460,  80  N.  E.  197;  Spero 
V.  Levy,  43  Misc.  24,  86  N.  Y.  Supp. 
869.  WIS. — Kewaunee  County  v. 
Decker,  30  Wis.  624;  Potter  v.  Van 
Norman,  73  Wis.  339,  41  N,  W.  524. 

08 


II. 


EFFECT  OF  WRONG  THEORY  OF  CASE. 


§534 


maintain,-^  or  plaintiff  is  comiiotent  to  bring,--  as  well 
as  whether  all  persons  Avere  made  parties  plaintiff  who 
sliould  be,-^  whether  the  action  is  properly  brought  in  the 
names  of  two  or  more  plaintiffs,-^  or  wiiether  an  action 
thus  brought  improperly  joins  a  cause  of  action  in  which 
one  of  the  plaintiffs  only  is  interested  ;2^  (10)  whether  the 
cause  of  action  is  one  which  survives,-*^  and  the  like. 


§534. 


Effect   of   wrong   theory   is    to    defeat 


A^Tiox.  A  clear  theory,  on  the  part  of  counsel  for  the 
plaintiff,  of  the  nature  of  the  cause  of  action,  is  essential 
to  a  proper  election  of  remedies  open  to  his  client;^  and 


21  Northern  Chicago  St.  R.  Co. 
V.  Ackley,  171  111.  100,  44  L.  R.  A. 
177,  49  N.  E.  222;  Stewart  v. 
Balderson,  10  Kan.  131;  Washborn 
V.  Linscott  State  Bank,  87  Kan. 
668,  125  Pac.  17;  Hunt  v.  Conrad, 
47  Minn.  557,  14  L.  R.  A.  512,  50 
N.  W.  614;  Boogren  v.  St.  Paul 
City  R.  Co.,  97  Minn.  54,  114  Am. 
St.  Rep.  691,  3  L.  R.  A.  (N.  S.)  381, 
106  N.  W.  104;  Byxbie  v.  Wood, 
24  N.  Y.  607. 

See  note,  14  L.  R.  A.  512;  44 
L.  R.  A.  177;  27  L.  R.  A.  (N.  S.) 
404. 

22  ARK.— United  States  Express 
Co.  V.  Rea,  121  Ark.  284,  181  S.  W. 
188.  COLO.— Martin  v.  McLaugh- 
lin, 5  Colo.  387.  IDAHO— Pratt  v. 
Northern  Pac.  Express  Co.,  13 
Idaho  373,  121  Am.  St.  Rep.  268, 
10  L.  R.  A.  (N.  S.)  490,  90  Pac.  341. 
KAN.— St.  Louis  &  S.  F.  R.  Co.  v. 
Stone,  78  Kan.  505,  97  Pac.  471, 
104  Pac.  1067;  Clute  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  83  Kan.  333,  30 
L.  R.  A.  (N.  S.)  1071,  111  Pac.  431. 
MO. — Central  American  Steamship 
Co.  V.  Mobile  &  O.  R.  Co.,  144  Mo. 
App.  43,  128  S.  W.  822.  OKLA.— 
St.  Louis  &  S.  F.  R.  Co.  v.  Allen, 
31    Okla.    248,    120    Pac.    1090. 


PA.— Dooley  v.  New  York  Cent.  & 
H.  River  R.  Co.,  62  Pa.  Super.  Ct. 
Rep.  237.  S.  C— Thomas  v.  Atlan- 
tic Coast  Line  R.  Co.,  85  S.  C.  542. 
67  S.  E.  908.  WASH.— Union  Feed 
Co.  V.  Pacific  Clipper  Line,  31 
Wash.  28,  71  Pac.  552. 

23  Slutts  V.  Chafee,  48  Wis.  617, 
4  N.  Y.  763. 

See,  also,  footnote  13,  this  sec- 
tion;   also,    next   footnote. 

24  Sheldon  v.  Steamship  Uncle 
Sam,  18  Cal.  526,  79  Am.  Dec.  193; 
Matthew  v.  Central  Pac.  R.  Co.,  63 
Cal.  450;  Baldwin  v.  Second  Street 
Cable  R.  Co.,  77  Cal.  390,  19  Pac. 
644;  Gomez  v.  Scanlan,  155  Cal. 
528,  530,  102  Pac.  13;  Gomez  v. 
Scanlan,  2  Cal.  App.  579,  84  Pac. 
50. 

2r,  Sheldon  v.  Steamship  Uncle 
Sam,  18  Cal.  526,  79  Am.  Dec.  193; 
Matthew  v.  Central  Pac.  R.  Co..  63 
Cal.  450. 

2C  Woodward  v.  Chicago  & 
N.  W.  R.  Co.,  23  Wis.  400;  Farwell 
Co.,  John  v.,  96  Wis.  10,  70  N.  W. 
289,  71  N.  W.  109;  Lane  v.  Fraw- 
ley,  102  Wis.  373,  78  N.  W.  593. 

1  As  to  election  of  remedies,  see, 
post,  §§  535-574. 


709 


§534 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  II, 


the  effect  of  a  wrong  theory,  on  the  part  of  counsel,  as  to 
the  nature  of  the  cause  of  action,  is  to  defeat  the  action. 
Thus,  if,  according  to  the  theory  of  counsel,  the  nature  of 
the  cause  of  action  is  ex  contractu,  and  the  complaint  is 
drawn  upon  that  theory,  should  the  proof  show  that  the 
nature  of  the  cause  of  action  is  ex  delicto, — or  vice 
versa, — there  can  be  no  recovery.^  Any  other  wrong 
theory  as  to  the  nature  of  the  cause  of  action  mil  be 
likewdse  disastrous  to  the  action.  Thus,  a  person  holding 
a  ticket  to  a  specified  seat  in  a  theater  for  a  particular 
performance,  but  is  for  any  reason  prevented  from  occu- 
pying such  seat,  he  has  a  cause  of  action  against  the 
proprietor  of  the  theater  for  a  breach  of  contract,^  but  if 
according  to  his  theory  of  the  case  a  wrong  has  been 
suffered  by  him,  and  he  brings  an  action  of  trespass,  he 
will  lose  his  cause,^  because  a  theater  ticket,  or  a  ticket  to 
any  public  entertainment,  is  a  mere  license,  which  may  be 
revoked  at  any  time  before  the  holder  of  the  ticket  has 
actually  been  given  and  has  taken  the  seat  called  for  by 
his  ticket. °  And  in  an  action  charging  slahder  of  an  osteo- 
pathic practitioner  in  characterizing  him  as  "a.  quack 
and  a  charlatan,"  if  the  theory  of  counsel  is  that  the 
nature  of  the  cause  of  action  is  that  the  slander  is  in  fact 
against  osteopathy  as  a  profession  or  art  of  healing,  and 
not  against  the  plaintiff  personally  as  a  practitioner  of 
that  profession  or  art,  and  that  as  a  result  of  the  words 
complained  of  the  plaintiff  was  injured  and  damaged 
thereby  as  a  practitioner  of  the  profession  or  art  of  heal- 

2  See,  ante,  §  525. 


In  criminal  prosecution,  trial 
under  wrong  theory  of  crime 
charged  as  constituting  former 
jeopardy,  see  note,  24  L.  R.  A. 
(N.  S.)  481. 

3  Horney  v.  Nixon,  213  Pa.  St. 
20,  110  Am.  St.  Rep.  520.  1  L.  R.  A. 
(N.  S.)   1184,  61  Atl.  1088. 

4  Id. 


5  Greenberg  v.  Western  Turf 
Assoc,  140  Cal.  357,  73  Pac.  1050; 
McCrea  v.  Marsh,  78  Mass.  (12 
Gray)  211,  71  Am.  Dec.  745;  Bur- 
ton V.  Schrept,  83  Mass.  (1  Allen) 
133,  79  Am.  Dec.  717;  Purcell  v. 
Daly,  19  Abb.  N.  C.  (N.  Y.)  301; 
Wood  V.  Leadbitter,  13  Mees.  &  W. 
838. 

See  notes.  110  />  m.  St.  Rep.  525; 
1  L.  R.  A.   (N.  S.J   1184. 


'10 


ell.  III.] 


EFFECT  OF  WRONG  THEORY  OF  CASE. 


§53-i 


ing  by  osteopathic  treatment,  there  can  be  no  recovery  f 
for  the  reason  that,  under  counsel's  theory  of  the  nature 
of  the  cause  of  action  raised  by  the  words  complained  of, 
the  slander  is  not  of  the  plaintiff  as  an  individual,  but 
of  a  general  class  to  which  he  belongs,  and  where  a  gen- 
eral class  is  slandered,  no  one  indi\ddual  of  that  class  is 
injured  in  such  a  manner  as  to  create  a  cause  of  action 
for  damages  for  the  slander  in  his  favor  on  account  of 
the  slanderous  words  spoken.'^  Thus,  to  say  that  "all  law- 
yers are  thieves,"^  or  to  charge  cowardice  and  ill- 
treatment  of  noncombatants  by  a  whole  army,^  or  to  make 
a  slanderous  disparagement  of  the  officers  of  a  whole 
regiment,^"  and  the  like,  will  not  give  a  right  to  a  civil 
action  for  the  slander  in  favor  of  any  indi\idual  lawyer, 
member  of  the  army,^^  or  officer  of  the  regiment.^-  -. 

The  rule  is  different  where  the  slanderous  language  is 
of  such  a  character  as  to  restrict  the  designation  of  a 


6  Lathrop  v.  Sundberg,  62  Wash. 
136,  Ann.  C  a  s.  1912C,  891,  33 
L.  R.  A.  (N.  S.)   90,  113  Pac.  574. 

7  ARK.— Comes  v.  Cruce,  85  Ark. 
79,  14  Ann,  Cas.  237,  107  S.  W.  185. 
GA. — Hardy  v.  Williamson,  86  Ga. 
551,  22  Am.  St.  Rep.  479,  12  S.  E. 
874.  MASS.— Merrill  v.  Post  Pub. 
Co.,  197  Mass.  185,  83  N.  E.  419. 
MICH.— Lewis  v.  Coule,  3  Mich. 
514;  Watson  v.  Detroit  Journal  Co., 
143  Mich.  430,  8  Ann.  Cas.  131,  5 
L.  R.  A.  (N.  S.)  480,  107  N.  W.  81. 
MINN.— Stewart  v.  Wilson,  23 
Minn.  449.  MO.  —  Kenworthy  v. 
Journal  Co.,  117  Mo.  App.  237,  93 
S.  W.  882.  N.  H.— Palmer  v.  Con- 
cord, City  of,  48  N.  H.  211,  97  Am. 
Dec.  605.  N.  Y.— Sumner  v.  Buel, 
12  Johns.  475;  Ryckman  v.  Del- 
avan,  25  Wend.  186,  rjiversing 
White  V.  Delavan,  17  Wend.  49; 
People  V.  Eastman,  188  N.  Y.  478, 
11  Ann.  Cas.  30?  SI  N.  E.  459; 
Hauptncr  v.  White,   81  App.   Div. 


153,  80  N.  Y.  Supp.  895.  ENG.— 
R.  V.  Alme,  3  Salk.  224,  91  Eng. 
Repr.  790. 

8  Eastwood  V.  Holmes,  1  Fost. 
&  F.  347. 

9  Palmer  v.  Concord,  City  of,  48 
N.  H.  211,  97  Am.  Dec.  605. 

10  Sumner  v.  Buel,  12  Johns. 
(N.  Y.)    475. 

11  Lieutenant  colonel  of  regi- 
ment was  held  to  have  a  right  to 
maintain  an  action  for  slander  for 
stating  that  the  regiment  was 
composed  of  cowards  and  black- 
guards, and  for  that  reason  had 
been  dismissed  and  sent  home,  in 
Shearlock  v.  Beardsworth,  1  Murr. 
(Sch.)    196. 

12  state  V.  Brady,  44  Kan.  435, 
21  Am.  St.  Rep.  296,  24  Pac.  948; 
Palmer  v.  Concord,  City  of,  48 
N.  H.  211,  97  Am.  Dec.  605;  Sum- 
ner V.  Buel,  12  Johns.  (N.  Y.)  474; 
People  V.  Eastman,  188  N.  Y.  478, 
11   Ann.  Cas.  302,  81  N.  E.  459. 


711 


§534 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  II, 


class  so  as  to  point  out  a  particular  locality.^^  And  a 
different  rule  also  prevails  in  a  criminal  prosecution 
charging  such  a  slander.^* 


13  ALA. — Chandler  v.  Holloway, 
4  Port.  17;  Wofford  v.  Meeks,  129 
Ala.  349,  87  Am.  St.  Rep.  66,  55 
L.  R.  A.  214,  30  So.  625.  CAL.— 
Schomberg  v.  Walker,  132  Cal.  224, 
64  Pac.  290.  COL  O.— Byers  v. 
Martin,  2  Colo.  605,  25  Am,  Rep. 
755.  GA. — Hardy  v.  Williamson, 
86  Ga.  551,  22  Am.  St.  Rep.  479,  12 
S.  E.  874.  KY.— Forbes  v.  John- 
son, 50  Ky.  (11  B.  Mon.)  48.  MD. 
— Goldsborough  v.  Orem,  105  Md. 
671,  64  Atl.  36.  MASS.— Ellis  v, 
Kimball,  33  Mass.  (16  Pick.)  132. 
N.  Y.— Gidney  v.  Black,  11  Johns. 
54;  Bornmann  v.  Star  Co.,  174 
N.  Y.  212,  66  N.  E.  723;  Weston 
V.  Commercial  Advertiser  Co.,  184 
N.  Y.  479,  77  N.  E.  660;  Woods 
V.  Gleason,  18  App.  Div.  401,  46 
N.  Y.  Supp.  200;  Maybee  v.  Fisk, 
42  Barb.  326;  Dwyer  v.  Fireman's 
Journal  Co.,  11  Daly  248;  Ryer  v. 
Fireman's  Journal  Co.,  11  Daly 
251;  Cook  v.  Reif,  52  N.  Y.  Super. 
Ct.  Rep.  (20  Jones  &  S.)  302,  8 
N.  Y.  Civ.  Proc.  Rep.  133;  McClean 
V.  New  York  Press  Co.,  19  N.  Y. 
Supp.  262.  S.  D.— Barron  v.  Smith, 
19  S.  D.  50,  101  N.  W.  1105;  Whit- 
ford  V.  Smith,  19  S.  D.  158,  102 
N.  W.  1135;  Nichols  v.  Smith,  19 
S.  D.  159,  102  N.  W.  1135.  UTAH. 
— Fenstermaker  v.  Tribune  Pub. 
Co.,  12  Utah  439,  13  Utah  532,  35 
L.  R,  A.  611,  43  Pac.  12,  45  Pac. 
1197.  WASH.— Lathrop  v.  Sund- 
berg,  55  Wash.  144,  25  L.  R.  A. 
(N.  S.)  381,  104  Pac.  176.    WIS.— 


Street  v.  Johnson,  80  Wis.  455,  27 
Am.  St.  Rep.  42,  14  L.  R.  A.  203, 
50  N.  W.  395;  Smith  v.  Utley,  92 
Wis.  133,  35  L.  R.  A.  620,  65  N.  W. 
744.  ENG.— Foxcroft  v.  Lacy,  1 
Hob.  89,  80  Eng.  Repr.  239;  Le 
Fanu  V.  Malcomson,  1  H.  L.  Cas. 
637;  Shearlick  v.  Beardsworth,  1 
Murr.    (Sch.)    196. 

Police  board  member,  it  has 
been  said,  can  not  maintain  an 
action  for  libel  or  slander  for 
charging  a  corrupt  combination  of 
others  with  the  board  to  protect 
and  promote  brothels,  gambling, 
lotteries,  and  other  unlawful  prac- 
tices and  businesses,  without 
establishing  that  the  publication 
was  of  and  concerning  h  i  m. — 
Caruth  v.  Richeson,  96  M.  18G,  9 
S.  W.  633. 

Wine-grape  grower  of  com- 
munity, who  also  makes  and  law- 
fully sells  wine,  can  not  maintain 
an  action  for  libel  or  slander  in 
charging  that  the  killing  of  a  per- 
son was  the  result  of  the  "wine 
Joints,"  in  one  of  which  the 
quarrel  started  resulting  in  the 
homicide;  that  the  passions  of  the 
deceased  were  inflamed  by  the  de- 
coction sold  as  wine,  which  was 
probably  adulterated  and  doubt- 
less never  saw  a  grape. — Comes  v. 
Cruce,  85  Ark.  79,  14  Ann.  Cas. 
327,   107   S.  W.   185. 

14  See  Kerr's  Whart.  Criminal 
Procedure  (10th  ed.),  vol.  2,  pp. 
1300-1302. 


712 


CHAPTER  IV. 

ELECTION  OF  REMEDIES. 

§  535.    In  general. 

§  536.    Definition  and  nature  of  election. 
§  537.    Classes  or  kinds  of  remedies,  as  to  election. 
§  538.    Alternative  and  conflicting  remedies. 
§  539.    Concurrent  remedies — Definition,  origin,  nature. 
§  540.    Concurrent  and  nonconflicting   remedies :   Illustra- 
tions. 
§  541.    When  election  of  remedies  may  be  required. 
§  542.    What  constitutes  election  of  remedies. 
§  543.    Time  when  election  to  be  made — Notice  of  election. 
§  544.    Conclusiveness  of  election  of  remedies — In  general. 

§  545.    Abandonment  or  withdrawal  of  election. 

§  546.    Mistake  in  remedy  pursued. 

§  547.    Application  of  doctrine  of  election — In  general. 

§  548.    Acceptance  of  assets  and  assumption  of  debts  of 

partnership. 

§  549.    Approbating  and  reprobating. 

§  550.    Attachment  and  replevin. 

§  551,    Common-law  and  statutory  remedies. 

§  552.    Continuing  nuisance  and  trespass. 

§  553.    Contract — In  general. 

§  554. Conditional  sale. 

§  555.    Contract  and  fraud. 

§  556.    Contract  and  tort. 

§  557. Benefit  received  necessary  to  election. 

§  558.    Corporation  without  franchise,  etc. 

§  559.    Co-tenant  excluded  from  property. 

§  560.    Damage  to  real  property. 

§  561.    Death  from  negligent  or  wrongful  act — Common-law 

rule. 

§  562. Under  statute :  Election. 

§  563.    Deposit  wrongfully  paid  to  another. 

§  564.    Encroachment  upon  land :  Upon  rights  in  street  or 

highway. 

713 


§  535  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

§  565.  Ex  contractu  and  ex  delicto  actions. 

§  566.  Landlord  and  tenant. 

§  567.  Law  and  equity. 

§  568.  Master  and  servant. 

§  569.  Mortgage  and  note. 

§  570.  Passenger  injured  through  negligent  or  wrongful  act. 

§571.  Pretermitted  children. 

§  572.  Principal  and  agent. 

§  573.  Property  exempt  from  debts — Particular  obligation. 

§  574.  Purchaser  at  judicial  or  execution  sale. 

§  535.  In  GENERAL,.  The  selection  of  the  proper  or  right 
remedy  is  as  highly  important  to  the  success  of  a  cause 
as  is  the  formulation  of  a  correct  theory  of  the  case, 
treated  in  the  last  chapter ;  as  a  matter  of  fact,  the  two 
go  hand  in  hand,  for  without  a  correct  theory  of  the  case 
the  proper  remedy  may  not  be  selected,  and  an  inappro- 
priate remedy  adopted  leads  to  disaster  in  the  trial  of 
the  cause.  Not  only  an  appropriate  remedy  should  be 
selected,  but  the  one  which  is  the  most  appropriate,  con- 
sidering the  relation  of  the  parties  and  the  facts  in  the 
case.  The  strength  or  weakness  of  the  cause,  as  well  as 
the  nature  and  amount  of  the  proof,  are  matters  to  be 
carefully  considered  in  the  adoption  of  the  remedy  to  be 
pursued.  From  the  inherent  nature  of  some  causes  the 
chances  of  success  are  better  when  the  cause  is  tried  to 
a  jury,  in  which  s>inpathy  or  prejudice  may  be  aroused ; 
if  purely,  or  largely,  a  matter  of  law  and  interpretation, 
the  cause  is  usually  better  presented  to  the  court  without 
a  jury.  The  remedy,  under  the  same  state  of  facts,  may 
be  either  at  law  or  in  equity,  in  contract  or  in  tort,  and 
the  like;  and  the  selection  of  the  appropriate  remedy  will 
generally  be  controlled  by  the  nature  of  the  evidence  as 
well  as  by  the  nature  of  the  subject-matter  or  act  com- 
plained of.  In  equity  and  tort,  the  rules  of  evidence  are 
more  liberal  than  at  law  and  in  contract,  and  things 
possibly  not  admissible  in  either  of  the  latter  may  plainly 

714 


I 


ell.  IV.]  ELECTION  OF  REMEDIES — IN  GENERAL.  §  535 

be  admissible  iu  evidence  under  the  former,  although 
more  evidence  may  be  required.  The  election  to  sue  in 
equity  instead  of  at  law/  or  in  tort  instead  of  contract,'- 
and  the  like,  or  vice  versa,  if  a  mistaken  remedy,^  may 
prove  fatal  to  the  success  of  the  cause, — as  will  be  more 
fully  explained  in  detail  in  the  following  sections.  An 
action  which,  in  the  ultimate  analysis,  is  nothing  other 
than  the  old  action  of  trespass  quare  clausum  f regit,  is 
maintainable  at  law  only,^  a  court  of  equity  having  no 
jurisdiction;  and  if,  by  any  chance  mistake  as  to  the 
appropriate  remedy,  suit  is  instituted  in  equity,  seeking 
such  relief  as  that  court  can  grant,  the  suit  will  be  dis- 
missed or  the  remedy  sought  denied.  Thus,  in  the  case 
of  a  dispute  regarding  the  existence  of  a  right  of  public 
way  over  the  property  of  a  person,  where  the  defendant 
throws  down  fences  erected  across  and  demolishes  gates 
swung  over  such  claimed  way,  and  persists  in  traveling 
over  or  along  such  claimed  way,  which  he  contends  is  a 
public  highway  by  dedication,  the  remedy  of  the  land- 
owner is  an  action  at  law  to  recover  damages  for  the 
trespass,  and  not  a  suit  in  equity  for  an  injunction 
restraining  such  continued  and  continuing  trespass,'"  be- 
cause of  the  well-established  principle  that  equity  will  not 
take  jurisdiction  in  such  an  action,  except  in  those  in- 

1  As    to    election    between    law  53  Am.    Rep.  342.     See:    Jacob  v. 

and  equity,  see,  post,  §  567.  Day,    111    Cal.    571,    44    Pac.    243; 

-  As    to    election    between    con-  Bishop  v.  Owens,  5  Cal.  App.  83, 

tract  and  tort,  see,  post,  §556.  89  Pac.  844;    Catching  v.   Ferrell, 

^  As  to  effect  of  pursuing  a  mis-  10  Ga.  576;   Nichols  v.  Satton,  22 

taken   remedy,  see,  post,  §  546.  Ga.    369;    Bolster  v.   Catterlin,   10 

4  Nature  of  writ  is  shown  by  the  Ind.  118;    Campbell  v.  Coonrandt, 

formal    words    summoning    the  26  Kan.  67;    Tigard  v.  Moffitt,  13 

defendant  —  ostensusus  quare  Neb.    565;    Parker    v.    Parker,    82 

clausum  fugit,  to  show  wherefore  N.    C.    168;    FYink  v.    Stewart,    94 

he   broke   the   plaintiffs    close. — 3  N.   C.    484;    Minning's    Appeal,   In 

Bl.  Com.  209,  281;  Reg.  Orig.  93b,  re,  82  Pa.  St.  373;  Smith  v.  Ocono- 

96,  99.  monoc,   City   of,   49   Wis.   694,    6 

0  Smith  V.  Gardener,  12  Ore.  221,  N.  W.  329. 

715 


§536 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  II, 


stances  in  which  irreparable  injury  will  be  done,**  and 
there  exists  no  speedy  and  adequate  remedy  at  law/ 

^  536.  Definition  and  nature  of  election.  An  elec- 
tion of  remedies,  in  the  legal  sense,  is  the  choosing 
between  two  or  more  alternate  and  coexisting,  but  incon- 
sistent and  conflicting,  remedies  or  modes  of  procedure 
and  relief  open  to  the  party,  and  allowed  by  law  on  the 
same  state  of  facts, ^  the  selection  of  any  one  of  which 
estops  the  party  so  electing  from  pursuing  any  of  the 
other  remedies."  Election  of  remedies  is  founded  upon 
the  wholesome  rule  that  a  party  can  not,  either  in  the 
course  of  the  proceedings  in  a  cause  or  in  dealings  in  pias, 
occupy  inconsistent  positions ;  that  is  to  say,  a  party  can 
not  be  allowed  to  approbate  and  reprobate  at  one  and  the 
same  time  or  in  succession.^  But  the  party  must  actually 


6  See:  Crescent  City  Wharf  & 
Lighter  Co.  v.  Simpson,  77  Cal. 
286,  19  Pac.  426;  Cooper  v.  Ham- 
ilton, 8  Blackf.  (Ind.)  378;  State 
Sav.  Bank  v.  Kercheval,  65  Mo. 
682,  27  Am.  Rep.  310;  McPike  v. 
West,  71  Mo.  199;  Jerome  v.  Ross, 
7  Johns.  Ch.  (N.  Y.)  315,  11  Am. 
Dec.  484;  Clark  v.  Syracuse,  City 
of,  13  Barb.  (N.  Y.)  32;  Gause  v. 
Perkins,  56  N.  C.  (3  Jones  Eq.) 
177,  69  Am.  Dec.  728;  Lewis  v. 
North  Kingston,  Town  of,  16  R.  I. 
15,  27  Am.  St.  Rep.  724,  11  Atl. 
173;  Smith  v.  Pettingill,  15  Vt.  82, 
84,  40  Am.  Dec.  667;  Tifft  Co.  v. 
State  Medical  Institute,  53  Wash. 
365,  101  Pac.  1081;  Millan  v.  Fer- 
rell,  7  W.  Va.  229;  Taylor  v.  Col- 
lins, 51  Wis.  123,  8  N.  W.  22. 

7  See:  Erwin  v.  Exton,  125  Cal. 
622,  58  Pac.  257;  Marcy  v.  Taylor, 
19  111.  634;  Cyr  v.  Madore,  73  Me. 
53;  Wright  v.  Turkey,  57  Mass. 
(3  Cush.)  290;  Burnham  v.  Mc- 
Questen,  48  N.  H.   446;    Smith  v. 


Gardner,  12  Ore.  221,  53  Am.  Rep. 
342;  Sharp  v.  Mynatt,  69  Tenn.  (1 
Lea)  375;  Morse  v.  Ranno,  32  Vt. 
600;  Barraclough  v.  Johnson,  8  Ad. 
&  E.  99,  35  Eng.  C.  L.  499,  112 
Eng.  Repr.  773;  Le  Neve  v.  Mile 
End  Old  Town,  8  El.  &  Bl.  1054, 
92  Eng.  C.  L.  1053,  120  Eng.  Repr. 
392. 

1  Salmon  v.  Hoffman,  2  Cal.  142; 
Oregon  Mill  &  Grain  Co.  v.  Hyde, 
87  Ore.  517,  169   Pac.  79L 

2  See,  post,  §  544. 

3  Espy  V.  Comer,  80  Ala.  333: 
Rabitte  v.  Orr,  83  Ala.  185,  3  So. 
420;  Lehman  v.  Clark,  85  Ala. 
109,  4  So.  651;  Capital  City  Bank 
V.  Hilson,  64  Fla.  206,  Ann.  Cas. 
1914B,  1211,  60  So.  189;  Moshier 
V.  Frost,  110  111.  206;  Strosser  v. 
Ft.  Wayne,  City  of,  100  Ind.  443, 
452;  Jones  v.  Clouser,  114  Ind.  387, 
16  N.  E.  797;  Daniels  v.  Tearney, 
102  U.  S.  415,  26  L.  Ed.  187. 

As  to  approbating  and  reprobat- 
ing at  one  time  or  in  succession, 
see,  post,   §  549. 


716 


ch.  IV.] 


NATURE  OF  ELECTION  OF  REMEDIES. 


§53G 


have  at  his  command  two  or  more  alternative  and  incon- 
sistent remedies^  before  the  doctrine  of  election  ap- 
plies,^— an  election  being  impossible  where  the  party  has 
but  one  remedy  open  to  him,*^ — and  he  must  stand  in  the 
same  position  as  to  both  alternatives,  and  be  bound  to 
indicate  which  of  the  alternatives  he  will  choose."  Not 
only  this,  the  party  must  be  cognizant  of  all  the  facts,  and 
make  a  free  and  deliberate  choice,^  and  not  be  under  a 
misapprehension  as  to  the  law  applicable  to  the  case.® 
Where  there  is  no  remedy  to  relinquish,  there  is  neitlier 
duty  nor  right  to  elect  ;^^  and  wiiere  a  party  has  but  one 
remedy  given  him  by  the  law,  a  mistaken  selection  of  an 
inappropriate  remedy  will  not  estop  him  thereafter  to 
pursue  the  only  remedy  really  open  to  him.^^  Where  a 
party  has  a  remedy  ex  contractu  against  others,  this  will 


4  As  to  alternative  inconsistent 
remedies,  see,  post,  §  538. 

5  San  Bernardino  Invest.  Co.  v. 
Merrill,  108  Cal.  490,  41  Pac.  487; 
Elliott  V.  Collins,  6  Idaho  266,  55 
Pac.  301;  Rowell  v.  Smith,  123 
Wis.  510,  3  Ann.  C  a  s.  773,  102 
N.  W.  1. 

6  Boise  Devel.  Co.  v.  Boise  City, 
30  Idaho  675,  167  Pac.  1032. 

7  Norris  v.  Harris,  15  Cal.  226, 
228. 

See,  also,  post,  §  538. 

s  Wells,  Fargo  &  Co.  v.  Robin- 
son, 13  Cal.  133;  GaiTett  v.  Farwell 
Co.,  John  v.,  199  111.  436,  441,  65 
N.  E.  363;  Linn  v.  Zeigler,  68  Kan. 
528,  533,  75  Pac.  490;  Madden  v. 
Louisville,  N.  O.  &  T.  R.  Co.,  66 
Miss.  258,  276,  6  So.  181;  Noyes 
V.  Edgerly,  71  N.  H.  500,  504,  53 
Pac.  313;  Standard  Oil  Co.  v. 
Hawkins,  74  Fed.  395,  399. 

0  Misapprehension  as  to  the  law, 
equity  will  relieve  by  permitting 
withdrawal    or   discontinuance    of 


remedy,  and  permit  pursuit  of  the 
proper  remedy,  unless  the  pursuit 
of  the  first  remedy  wrought  a 
change  in  the  position  of  the 
parties  that  would  render  it  in- 
equitable to  allow  the  pursuit  of 
a  different  remedy. — Standard  Oil 
Co.  V.  Hawkins,  74  Fed.  395,  398-9. 
See:  Wells,  Fargo  &  Co.  v.  Robin- 
son, 13  Cal.  133;  Ward  v.  Ward, 
134  111.  417,  25  N.  E.  1012;  Nyes- 
wander  v.  Lowman,  124  Ind.  584, 
24  N.  E.  355;  Johnson-Brinkman 
Commission  Co.  v.  Central  Bank, 
116  Mo.  558,  38  Am.  St.  Rep.  615, 
22  S.  W.  813;  Macknet  v.  Macknet, 

20  N.  J.  Eq.  54;  Dunham  v.  Ewen 
(N.  J.  Eq.),  15  Atl.  245;  Becker  v. 
Walworth,  45  Ohio  St.  173,  12  N.  E. 
1;  Woodburn's  Estate,  In  re  Ap- 
peal of  McMannis,  138  Pa.  St.  606, 

21  Am.  St.  Rep.  932,  21  Atl.  16. 

10  San  Bernardino  Invest.  Co.  v. 
Merrill,  108  Cal.  490,  494,  41  Pac. 
487. 

11  See,  post,  §  546. 


717 


§§  537,  538 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  II, 


not  prevent  him  from  proceeding  in  an  action  ex  delicto 
against  a  wrongdoer.^^ 

§  537.  Classes  or  kinds  of  remedies,  as  to  election. 
As  respects  the  doctrine  of  election,  there  are  two  classes 
or  kinds  of  remedies,  which  are:  (1)  Alternative  and  con- 
flicting remedies,  and  (2)  concurrent  and  nonconflicting 
remedies.  In  this  connection  the  word  ''remedy"  means, 
in  legal  phraseology,  a  mode  prescribed  by  law  to  enforce 
a  duty  or  right,  or  to  prevent  or  redress  an  injury  or 
w^rong;^  that  is,  the  means  by  which  an  obligation  or  the 
corresponding  action  is  effectuated,-  not  an  obligation  to 
guarantee  a  right  or  to  indemnify  against  an  injury  or 
wrong.^  In  other  words,  the  doctrine  of  the  election  of 
remedies  has  to  do  only  w^th  the  legal  means  of  enforcing 
a  right  or  of  redressing  a  wrong,  and  involves  nothing 
more  nor  less  than  the  making  of  a  choice  between  incon- 
sistent rights,  and  the  selection  of  the  appropriate  remedy 
to  enforce  the  same.* 

<^  538.  Alternative  and  conflicting  remedies.  It  is 
the  universal  rule  that  conflicting  remedies  can  not  be 
prosecuted  concurrently  or  successively.^  But  the  doc- 
trine of  election  applies  in  those  cases  only  in  which  there 


12  Union  Cent.  Life  Ins.  Co.  v. 
Scheidler,  130  Ind.  214,  15  L.  R.  A. 
89,  29  N.  E.  1071;  Strause  v.  West- 
ern Union  Tel.  Co.,  8  Biss.  104, 
Fed.  Cas.  No.  13531. 

1  Missionary  Society  of  M.  E. 
Church  V.  Ely,  56  Ohio  St.  405,  47 
N.  E.  537;  United  States  v.  Ly- 
Man,  1  Mass.  432,  Fed.  Cas.  No. 
15647. 

2  Frost  V.  Wetter,  132  Cal.  421, 
426,  84  Am.  St.  Rep.  53,  64  Pac. 
705. 

3  United  States  v.  Lyman,  1 
Mass.  432,  Fed.  Cas.  No.  15647. 

4  Kallbey  v.  Newberry  (N.  D.), 
170  N.  W.  113. 


1  Hellings  v.  Heydenfeldt,  107 
Cal.  577,  40  Pac.  1026;  Mines  v. 
Ward,  121  Cal.  115,  120,  53  Pac. 
427;  Berkel  Co.  v.  Nast,  20  Cal. 
App.  651,  129  Pac.  945;  Bank  of 
Santa  Fe  v.  Haskell  County 
Commrs.,  61  Kan.  785,  60  Pac. 
1062;  Junkins  v.  Simpson,  14  Me. 
364;  Littlefield  v.  Brown,  1  Wend. 
(N.  Y.)  398,  404;  McElroy  v. 
Mancius,  13  Johns.  (N.  Y.)  121; 
Sanger  v.  Woods,  3  Johns.  Ch. 
(N.  Y.)  416,  422;  Butler  v.  Miller, 
1  N.  Y.  496;  Schoonmaker  v.  Kelly, 
42  Hun  (N.  Y.)  299,  304;  Gaffney 
V.  Megrath,  23  Wash.  476,  63  Pac. 
520;  First  Nat.  Bank  v.  Neilsen, 
92  Wash.  84,  159  Pac.  113. 


718 


eh.  IV.]  ALTERNATIVE,  ETC.,  REMEDIES.  §  538 

are  two  or  more  appropriate  ways  of  enforcing  the 
party's  rights  in  the  controversy,-  and  when  the  relation 
of  the  parties  necessary  to  the  pursuit  of  the  one  success- 
fully are  such  that  the  concurrent  existence  of  the  rela- 
tions necessary  to  the  successful  prosecution  of  the  other, 
or  either  of  the  others,  is  impossible.^  Where  two  or  more 
remedies  are  available  to  a  party,  and  they  are  inconsis- 
tent with  each  other,  the  choice  of  one  with  knowledge, 
or  with  a  reasonable  means  of  knowledge,  of  the  facts,  has 
the  effect  to  extinguish  the  other  remedy  or  remedies.* 
The  inconsistency  of  coexistent  remedies  is  to  be  deter- 
mined by  a  consideration  of  the  subject-matter  of  the 
action  and  the  relations  of  the  parties  with  reference  to 
the  rights  sought  to  be  enforced,  as  the  same  are  asserted 
in  the  pleadings.^  Thus,  where  under  the  terms  of  a  lease 
a  failure  to  pay  an  installment  of  the  rent  accelerates  the 
maturity  of  the  installments  for  the  entire  term,  and  also 
authorizes  the  landlord  to  take  possession  of  the  premises, 
the  landlord  may  elect  (1)  to  sue  for  the  entire  amount  of 
the  rent,  accrued  and  to  accrue,  for  the  entire  term  of  the 
lease,  or  (2)  to  retake  possession  of  the  premises;  but  he 
can  not  do  both.®  A  party  who  is  entitled  to  rescind  a  con- 
tract of  sale  because  of  fraud  in  the  purchase,  on  learning 
of  the  fraud,  may  (1)  apply  for  and  obtain  an  attachment 
upon  the  other  property  of  the  purchaser,  as  debtor  under 
the  contract,  or  (2)  may  disaffirm  the  contract  and  re- 
plevin the  property ;  but  he  can  not  do  both.'^  Likewise,  a 
party  induced  by  fraud  to  enter  into  a  contract,  upon 

2  See,  ante,   §536,  footnote  5.  Pac.    1073;    Achey   v.    Creech,    21 

SRowell  V.  Smith,  123  Wis.  510,  Wash.  319,  58   Pac.  208;    Harding 

3  Ann.  Cas.  773,  102  N.  W.  1.  v.    Atlantic    Trust   Co.,    26    Wash. 

4  Parke    &    Lacy    Co.    v.    White  536,  67  Pac.  222;  Rowell  v.  Smith, 

River  Lumber  Co.,  101  Cal.  37,  35  123  Wis.  510,  3  Ann.  Cas,  773,  102 

Pac.  442;    Berkel  Co.  v.   Nast,   20  N.  W.  1. 

Cal.  App.  651,  129  Pac.  945;  Rem-  5  Capital    City    Bank   v.    Hilson, 

ington   Paper   Co.    v.    Hudson,    04  64  Fla.  206,  Ann.  Cas.  1914B,  1211, 

Kan.    43,    67    Pac.    636;    James    v.  60  So.  189. 

Parsons,  70  Kan.  156,  78  Pac.  438;  c  See,  post,  §  566. 

Ullrich  V.  Bigger,  81  Kan.  756,  106  7  See,  post,  §  555. 

719 


§538 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  11, 


discovering  tlie  fraud,  may  (1)  rescind  the  contract,  and, 
after  restoring  to  the  party  whatever  he  may  have  re- 
ceived thereunder,  sue  for  and  recover  back  the  entire 
consideration  paid,  or  (2)  may  retain  what  he  has  received 
and  sue  for  and  recover  such  damages  as  he  can  establish 
to  have  been  occasioned  by  the  fraud ;  but  he  can  not  have 
both  the  consideration  paid  and  damages.^  A  plaintiff 
can  not  sue  at  law  and  prosecute  to  an  adverse  judgment, 
and  then  sue  in  equity  for  the  same  cause  of  action  on  the 
same  state  of  facts.^  Thus,  a  party  who  sues  on  a  policy 
of  insurance  with  a  warranty,  pleading  compliance  there- 
with, on  judgment  against  him  on  the  ground  of  breach 
of  warranty,  can  not  then  maintain  a  suit  in  equity  for 
a  reformation  of  the  insurance  policy  by  striking  out  the 
warranty,  alleging  the  same  was  contrary  to  the  verbal 
agreement,  and  that  it  was  inserted  by  mistake.^*^  But  an 
unsuccessful  use  of  a  remedy  supposed  to  be,  but  in  effect 
not,  appropriate  to  \dndicate  the  right  of  a  particular 
matter,^ ^  either  because  the  facts  turn  out  to  be  different 
from  what  the  plaintiff  supposed  them  to  be,  or  because 
the  law  applicable  to  the  facts  is  found  to  be  different 
from  what  it  was  supposed  to  be,  although  the  first  action 
proceeds  to  an  adverse  judgment,  this  does  not  estop  or 
preclude  the  plaintiff  from  thereafter  invoking  the  proper 
remedy  in  another  suit.^-  Thus,  where  a  party  sues  to 
enforce  a  supposed  valid  agreement  to  answer  for  the 


sRodermund  v.  Clark,  46  N.  Y. 
354;  Bowen  v.  Mandeville,  95  N.  Y. 
240,  affirming  29  Hun  42;  Van  de 
Wiele  V.  Garbade,  60  Ore.  585,  120 
Pac.  752. 

See,  also,  post,  §  555. 

9  See,  post,  §  567. 

10  Washburn  v.  Great  Western 
Ins.  Co.,  114  Mass.  175.  See,  as 
enforcing  the  same  principle, 
among  other  cases,  Thomas  v. 
Joslin,  36  Minn.  1,  1  Am.  St.  Rep. 


624,  29  N.  W.  344;  Spurr  v.  Home 
Ins.  Co.,  40  Minn.  24,  42  N.  W. 
206;  Rossman  v.  Tilleny,  80  Minn. 
160,  81  Am.  St.  Rep.  247,  83  N.  W. 
42;  Steinbach  v.  Relief  Fire  Ins. 
Co.,  77  N.  Y.  498,  33  Am.  Rep.  655 
(but  basing  the  decision  on  res 
adjudicata  instead  of  election). 

11  As  to  effect  of  adopting  a 
remedy  not  open  to  the  party,  see, 
post,  §  546. 

12  Rowell  V.  Smith,  123  Wis.  510, 
3  Ann.  Gas.  773,  102  N.  W.  1. 


720 


ch.  IV.]  CONCURRENT  REMEDIES.  §  530 

debt,  default,  or  miscarriage  of  another,  on  it  appearing 
from  the  evidence  that  there  was  no  such  valid  agreement 
executed,  with  judgment  against  the  plaintiff,  he  may 
thereafter  maintain  an  action  (1)  to  compel  specific  per- 
formance of  a  verbal  agreement  and  to  make  a  valid  guar- 
anty, or  (2)  to  reform  a  defectively  written  guaranty  so 
as  to  make  the  same  in  accordance  with  the  intention  of 
the  parties.i3  The  reason  for  this  is  the  fact  that  the  state 
of  facts  necessary  to  a  recovery  on  the  first  cause  did  not 
coincide  with  the  facts  necessary  to  a  recovery  in  the  sec- 
ond cause.^* 

§  539.     CONCUKRENT  REMEDIES DEFINITION,   ORIGIN,  AND 

NATURE.  The  term  ''concurrent  remedies,"  as  here  used, 
means  running  together ;  having  the  same  authority ;  con- 
tributing to  the  same  event;  effectuating  the  same  end. 
In  the  civil  law,  concurrence,  technically  ''concurrere," 
is  a  term  applied  to  actions  where  two  or  more  meet  in, 
or  may  be  brought  by,  the  same  person;  that  is,  to  be 
equally  available  to  a  party.^  But  at  the  civil  law  two 
lucrative  actions  can  not  concur,  or  meet,  in  the  same  per- 
son and  for  the  same  thing — traditum  est,  duas  lucrativas 
causas  in  eundem  hominem,  et  eandem  rem.^  ''Con- 
course" is  the  term  used  in  the  Scotch  law,  but  a  concourse 
of  actions  is  not  allowed  to  the  same  person  by  that  law, 
except  in  special  cases.^  The  concurrence  of  two  or  more 
actions  for  the  same  thing  seems  to  have  been  recognized 
in  the  common  law  from  the  earliest  times — ubi  dujc 
actiones  de  eadem  re  concurrent,  "where  two  actions  con- 
cur for  the  same  thing" ;''  cum  quis  plures  habeat  actiones 
concurrentes  de  eadem  re,  "where  one  has  several  con- 
current actions  in  respect  to  the  same  matter  or  thing.  "^ 
The  phrases  "concurrent  actions"  and  "concurrent  reme- 
dies" are  in  constant  use  in  English  and  American  judica- 

13  Id.  2  Inst,  2,  20,  6. 

14  Id.;  Barth  v.  Loeffelholtz,  108  3  Ersk.  Inst.  b.  4,  tit.  1,  §  64. 
Wis.  5G2-568,  84  N.  W.  846.                         4  Broct.  fol.  144. 

1  1  Mackeld.  Civ.  Law  195,  §  198.  5  Id. 

I  Code  PI.  and  Pr.— 46  721 


§540 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  TI, 


ture;  but  these  phrases  do  not  necessarily  import  that 
both  or  all  actions  can  be  pursued  at  the  same  time,  or  that 
all  the  remedies  may  be  administered/  or  even  that  the 
actions  are ' '  coextensive. '  '^ 


§540. 


Concurring  and  nonconflicting  remedies  : 


Illustrations.  In  those  cases  in  which  a  party  has  two 
or  more  remedies  which  are  concurrent  and  nonconflicting, 
but  consistent  with  each  other,  each  may  be  pursued  at  one 
and  the  same  time,^  or  successively;  but  a  satisfaction  on 
one  remedy  is  a  satisfaction  of  all.-  Thus,  a  sub-contractor 
may  concurrently  prosecute  (1)  an  action  to  enforce  a 
mechanics'  lien  against  property,  and  (2)  an  action 
against  the  contractor  to  recover  the  sum  due  him.^  But 
this  rule  is  not  without  exceptions.  Thus,  a  mortgagee 
may  (1)  foreclose  his  mortgage  in  equity  and  sell  the 
property  to  realize  the  amount  of  his  claim,  and  (2)  sue 
at  law  upon  the  note  or  bond  secured  by  the  mortgage,  and 
issue  an  execution  against  his  debtor;  but  he  can  not 
maintain  at  one  and  the  same  time  an  action  at  law  and 
a  suit  in  equity.* 

Illustrations :  An  action  to  trace  public  funds  deposited 
by  a  state  treasurer  in  a  bank  which  subsequently  failed, 
and  accepting  dividends  from  the  receiver  of  the  bank, 
does  not  estop  the  state  to  pursue  its  remedy  on  the  bond 
of  the  treasurer.^  Claimants  for  supplies  furnished  to  a 
receiver  may  consolidate  their  actions  with  a  mortgage 
foreclosure  against  the  receiver  and  seek  to  have  their 
claims  declared  prior  to  the  mortgage  lien,  and  failing 


c  See  Thomas,  Ex  parte,  10  Mo. 
App.  24,  25,  holding  that  the 
phrase  "concurrent  remedies,"  as 
used  in  the  Missouri  constitution 
respecting  the  prosecution  of 
crimes  other  than  felonies  by  "in- 
dictment or  information,"  •  means 
"one  or  the  other." 

7  Sinnott   v.    Feiock,    164    N.    Y. 


444,  80  Am.  St.  Rep.  736,  53L.  R.A, 
565,  59  N.  E.  265. 

1  Rowell  V.  Smith,  123  Wis.  510, 
3  Ann.  Gas.  773,  102  N.  W.  1. 

2  Id. 

3  Hunt  V.  Darling,  26  R.  I.  480, 
69  L.  R.  A.  497,  59  Atl.  398. 

4  See,  post,  §  569. 

5  State  V.  Gramm,   7  Wyo.   329, 
40  L.  R.  A.  690,  52  Pac.  533. 


722 


C3l.  IV.]  ELECTION  OF  REMEDIES  REQUIRED  WHEN".  §  541 

in  that  may  prosecute  the  original  action  against  the 
plaintiff,  who  had  the  receiver  appointed.*^  A  creditor 
who  has  accepted  a  transfer  of  an  interest  in  an  insurance 
policy  on  property  theretofore  burned,  is  not  estopped  to 
proceed  by  garnishment  to  attach  the  money  due  to  his 
debtor  in  the  hands  of  the  insurance  company/  Follow- 
ing, as  a  trust  fund,  in  the  hands  of  a  receiver  money 
wrongfully  converted  by  an  insolvent  corporation,  does 
not  preclude  the  maintenance  of  an  action  against  the 
parties  by  whose  wrongful  act  the  funds  were  converted.* 
The  holder  of  a  fire  insurance  policy  on  a  burned  building, 
in  an  action  brought  ten  months  after  the  fire,  alleging 
performance  of  conditions  in  a  deed  deposited  in  escrow, 
is  not  estopped  to  claim  the  condition  was  not  performed 
at  the  time  of  the  fire.^  Proceeding  under  a  general  road 
law  for  the  opening  of  a  road  and  the  condemnation  of 
land  for  that  purpose,  does  not  bar  a  proceeding  under 
the  eminent  domain  act  for  condemning  land  for  a  road.^** 
Likewise,  proceeding  under  a  void  statute  to  have  land' 
condemned  for  a  private  road  does  not  preclude  the  party 
from  claiming  a  right  of  way  by  prescription.^^  But  the 
issuance  of  an  execution  on  a  deficiency  judgment  in 
equity  may  preclude  the  party  from  maintaining  an 
action  at  law  for  the  relief  sought.^^ 

§  541.  When  election  op  remedies  may  be  required. 
It  follows  from  what  has  been  said  in  the  preceding  sec- 
tion that  an  election  of  remedies  can  not  be  required 
unless  the  remedies  open  to  the  party  are  inconsistent  and 
conflicting,^  and  the  party  has  a  choice  of  remedies  arising 

6  German  Nat.  Bank  v.  Best  &  9  Pomeroy  v.  Aetna  Ins.  Co.,  8G 
Co.,  J.  D.,  32  Colo.  192,  75  Pac.  398,  Kan.  214,  120  Pac.  344. 

7  Potter  V.  Northup  Banking  Co.,  lo  Williams  v.  Butte  County 
59  Kan.  455,  53  Pac.  520.  Comrs.,  48  Colo.  541,  111  Pac.  71. 


11  McKim  V.  Carre,  72  Kan.  461, 
83  Pac.  1105. 


s  Sweet  V.  Montpelier  Sav.  Bank 
&  Trust  Co.,  69  Kan.  641,  77  Pac 
538. 

See,  also,  supra,  §536,  footnote  12  See,  post,  §569. 

10  and  text.  1  First  Nat.  Bank  v.  Regents  of 


723 


^541 


CODE   PLEADING   AND   PRACTICE. 


[Ft.  II, 


out  of  tlie  same  state  of  facts  f  he  must  stand  in  the  same 
position  as  to  both  remedies.^  Thus,  a  defendant  can  not 
be  compelled  to  elect  between  a  denial  of  title  in  the  plain- 
tiff and  a  plea  of  the  bar  of  the  statute  of  limitations.^ 
Where  two  counts  are  based  upon  the  same  cause  of 
action,  the  plaintiff  may,  as  a  general  rule,  on  motion  of 
the  defendant,  be  compelled  to  elect  upon  which  count 
he  will  proceed,^  except  in  those  cases  in  wdiich  the  knowl- 
edge as  to  the  nature  of  the  cause  of  action  and  the  lia- 
bility of  the  defendant  are  peculiarly  with  the  defendant, 
as  noted  below\^  But  in  those  cases  where  only  one  of 
several  counts  or  causes  of  action  is  properly  and  effec- 
tively stated  in  the  complaint,  the  defendant  can  not 
require  the  plaintiff  to  elect;  there  can  be  no  election 
under  such  a  state  of  the  pleadings.'^  Where  there  are 
two  averments  as  to  damages,  one  only  proper  pleading, 
including  both  grounds  of  damages  set  out  in  the  com- 
plaint, the  plaintiff  can  not  be  put  to  an  election."^  The- 
facts  being  peculiarly  within  the  knowledge  of  the  defen- 
dant, and  the  plaintiff  being  ignorant  of  the  precise  na- 
ture and  limits  of  the  defendant's  liability,  he  may  state 
his  cause  of  action  variously  in  different  counts  of  the 
complaint,  to  meet  the  varying  phases  of  the  evidencf^, 
and  should  not  be  required  to  elect  on  which  count  he  will 
proceed  f  at  least  not  until  the  evidence  is  all  in.  In  the 
case  where  a  person  claiming  an  exemption  is  uncertain 
whether,  as  a  matter  of  law,  he  is  entitled  to  it  as  a 
farmer  or  as  a  teamster,  he  is  entitled  to  plead  both  claims 
and  recover  according  as  the  facts  establish ;  he  can  not 


University  of  Idaho,  26  Idaho  15, 
140  Pac.  771. 

2  O'Donnell  v.  McCool,  89  Wash. 
537,  154  Pac.  1090. 

See,  ante,  §  536,  footnote  5. 

3  See,  ante,  §  536,  footnote  7. 

4  Wilson  V.   Cleaveland,   30  Cal. 
192. 

5  Anthony  v.  Savage,  2  Utah  466. 

6  See  footnote  9,  this  section. 


T  Chamberlain  v.  Townseud,  72 
Ore.  207,  142  Pac.  782.  143  Pac. 
924. 

See,  also,  ante,  §  536,  footnotes 
5-7;  §  538,  footnote  2. 

s  Fox  V.  Oakland  Consol.  Street 
R.  Co.,  118  Cal.  55,  68,  62  Am.  St, 
Rep.  216,  50  Pac.  25. 

n  Rucker  v.  Hale,  105  Cal.  425, 
38  Pac.  962. 


724 


ch.  IV.]  ELECTION  OP  REMEDIES — WHAT  IS  AN.  §  542 

be  compelled  to  elect  between  them.^°  A  creditor,  resident 
in  the  state  of  the  attachment,  attaching  property  of  a 
nonresident  insolvent  concern,  before  the  affairs  of  the 
concern  are  placed  in  the  hands  of  a  receiver,  served  with 
notice  of  the  subsequent  appointment  of  a  receiver  in  such 
other  state,  is  not  put  to  an  election  between  his  attach- 
ment and  a  right  to  share  in  the  estate,  but  may  avail 
himself  of  the  security  thus  obtained,  and  if  the  proceeds 
are  insufficient  to  pay  his  claim  in  full,  he  may  present 
his  claim  for  any  balance  to  the  receiver  the  same  as  other 
creditors." 

In  equitable  remedies  there  is  no  rule  of  law  requiring 
a  party  to  resort  to  one  in  preference  to  another  equitable 
remedy,  both  remedies  being  equally  applicable  to  the 
facts  constituting  the  cause  of  action  or  defense,  and  both 
being  equally  available  to  the  party  ;^-  the  choice  is  within 
his  uncontrollable  discretion. 

§  542.  What  coxstitutes  election  of  remedies.  The 
doctrine  of  the  election  of  remedies,  where  it  applies,  as 
a  general  rule,  relates  to  the  first  pronounced  act  of  elec- 
tion or  suit,  and  makes  such  election  a  defense  to  the 
prosecution  of  a  second  action  or  suit  on  a  theory  as  to 
the  remedy  inconsistent  with  the  theory  as  to  remedy 
in  the  first  action  or  suit.^  Any  decisive  act  of  the  party, 
with  knowledge  of  his  rights  and  of  the  facts  in  the  case, 
constitutes  an  election  as  to  conflicting  and  inconsistent 
remedies.-  Thus,  it  has  been  said  that  the  mere  coin- 
mencement  of  action  at  law  or  a  suit  in  equity,  where  all 
the  facts  are  known,  may  constitute  an  election  of  reme- 
dies, and  preclude  the  party  from  pursuing  another,  and 

10  Van  Lue  V.  Wahrlich-Corbett  112  Atchison,  City  of,  Board  of 
Co.,  12  Cal.  App.  749,  108  Pac.  Education  v.  Scoville,  13  Kan.  17. 
717.  1  Mizell  Live   Stock   Co.   v.    Mc- 

11  Ward  V.  Connecticut  Pipe  Caskill  Co.,  J.  J.,  62  Fla.  239.  Ann. 
Mfg.  Co.,  71  Conn.  345,  71  Am.  St.  Cas.  191.'^D,  1197,  Sfi  So.  391. 

Rep.  207,  42  L.  R.  A.  706,  41  Atl.  2  Sangpr  v.  Wood,  3  Johns.  Ch. 

1057.  'N.  Y.)  416. 

725 


§542 


CODE  PLEADING  AND  PRACTICE. 


[Pt.TI, 


enable  the  defendant  to  plead  the  first  action  or  suit  in  bar 
to  a  subsequent  one.^  Bringing  a  suit  to  redeem  from  a 
foreclosure  sale,  has  been  said  to  preclude  the  party  from 
insisting  on  the  invalidity  of  such  sale.*  On  the  other 
hand  it  has  been  said  that  something  more  than  the  mere 
bringing  of  an  action  at  law,  or  instituting  a  suit  in  equity, 
is  necessary  to  make  an  election  final  and  binding  upon 
the  party ;  that  the  act  must  be  a  clear  and  affirmative  one 
changing  the  relations  of  the  parties  to  the  subject- 
matter,^  Thus,  it  is  held  that  merely  commencing  an 
attachment  and  filing  a  bill  in  equity  on  the  ground  of 
fraud  in  procuring  credit  on  the  purchase,"  or  commenc- 
ing an  attachrrient,  and  dismissing  the  proceedings  before 
judgment,  and  before  the  rights  of  other  parties  have 
intervened,'^  does  not  constitute  a  binding  election  of  in- 
consistent remedies.  In  seeming  opposition  to  this  doc- 
trine, it  has  been  said  that  the  proof  of  a  claim  in  bank- 


3  Lloyd  V.  Brewster,  4  Paige  Ch. 
(N.  Y.)  537,  27  Am.  Dec.  88;  Mor- 
ris V.  Rexford,  18  N.  Y.  552;  Bank 
of  Beloit  V.  Beale,  34  N.  Y.  473, 
affirming  20  N.  Y.  Super.  Ct.  Rep. 
(7  Bosw.)  611,  which  affirmed  11 
Abb.  Pr.  375,  20  How.  Pr.  331; 
Conrow  v.  Little,  115  N.  Y.  387, 
393,  5  L.  R.  A.  693,  22  N.  E.  346; 
Rose  V.  Rundall,  86  Wash.  422,  150 
Pac.  614. 

Goods  sold  to  agent  of  undis- 
closed principal,  vendor  may  elect 
to  sue  (1)  agent  alone  or  (2)  un- 
disclosed principal,  but  he  can  not 
sue  one  after  suing  the  other. — 
Mantage  v.  Poole,  15  Hun  (N.  Y.) 
556. 

4  Horn  V.  Indianapolis  Nat.  Bank, 
125  Ind.  281,  9  L.  R.  A.  676,  25  N.  E. 
558. 

5  See  Deans  v.  Dunkins,  33  Ala. 
47;  Bennett  v.  Goldthwait,  109 
Mass.  494,  12  Am.  Rep.  742. 

Disputed    question    of   effect    of 


bringing  an  action  as  an  irrevo- 
cable election,  discussed  in  John- 
son-Brinkraan  Commission  Co.  v. 
Missouri  Pac.  R.  Co.,  126  Mo.  344, 
47  Am.  St.  Rep.  675,  26  L.  R.  A. 
840,  28  S.  W.  870;  Fowler  v. 
Bowery  Sav.  Bank,  113  N.  Y.  450, 
10  Am.  St.  Rep.  479,  4  L,  R.  A.  145, 
21  N.  E.  172;  Conrow  v.  Little,  115 
N.  Y.  387,  5  L.  R.  A.  693,  22  N.  E. 
346;  Terry  v.  Munger,  121  N.  Y. 
161,  18  Am.  St.  Rep.  903,  8  L.  R.  A. 
216,  24  N.  E.  272;  Grossman  v. 
Universal  Rubber  Co.,  127  N.  Y.  34, 
13  L.  R.  A.  91,  27  N.  E.  400,  and  in 
the  notes  appended  to  those  cases 
in  both  series  of  selected  and  an- 
notated cases. 

6  Grossman  v.  Universal  Rubber 
Co.,  127  N.  Y.  34,  13  L.  R.  A.  91, 
27  N.  E.  400. 

7  Johnson-Brinkman  Commission 
Co.  V.  Missouri  Pac.  R.  Co.,  126 
Mo.  344,  47  Am.  St.  Rep.  675,  26 
L.  R.  A.  840,  28  S.  W.  870. 


726 


ch.  IV.]  ELECTION  OF  REMEDIES — WHAT  IS  AN.  §  542 

ruptcy  is  the  election  of  an  inconsistent  remedy  which  has 
the  effect  to  bar  the  prosecution  of  a  suit  already  com- 
menced on  the  same  claim,^  although  there  are  authorities 
to  the  contrary;^  but  where  a  claim  has  been  presented 
and  proved  in  bankruptcy,  and  a  discharge  in  bankruptcy 
is  refused,  an  action  on  the  claim  proved  may  be  main- 
tained;^^ and  likewise  the  proof  of  a  claim  against  an 
insolvent  corporation,  does  not  bar  a  subsequent  suit 
against  the  officers  and  stockholders  to  charge  them  with 
the  claim,  or  so  much  of  it  as  remains  unpaid. ^^  And  the 
commencement  and  pendency  of  an  action  on  a  contract 
for  goods  sold  and  delivered  will  not  prevent  a  second 
action  for  the  conversion  of  the  same  goods  ;^-  nor  will  an 
action  to  set  aside  a  debtor's  assignment  for  the  benefit 
of  creditors,  on  the  ground  of  fraud,  constitute  such  an 
election  of  remedies  as  will  debar  the  party  from  sharing 
in  the  distribution  of  the  estate  pending  such  suit.^" 

Inconsistent  positions  or  remedies  prevailing,  the  occu- 
pying of  the  one  or  the  attempt  to  enforce  the  other,  is  an 
abandonment  of  all  inconsistent  positions  or  remedies. ^^ 
Thus,  a  person  availing  himself,  for  his  benefit,  of  an 
unconstitutional  statute  can  not,  in  a  subsequent  litigation 
against  himself,  set  up  the  unconstitutionality  of  the 
statute  as  a  defense.^^  And  an  action  to  disaffirm  a  cou- 

8  Bennett  v.  Goldthwait,  109  Action  for  money  had  and  re- 
Mass.  494,  12  Am.  Rep.  742;  Cook  ceived,  however,  has  said  to  bar  a 
V.  Coyle,  113  Mass.  252;  Cutter  v.  subsequent  action  against  the 
Evans,  115  Mass.  27;  Goodenow  v.  same  defendant  for  conversion. - 
Hall,  125  Mass.  587.  See  Droege  v.  Carroll  v.  Fethers,  102  Wis.  4G3,  78 
Ahrens  &  O.  Mfg.  Co.,  163  N.  Y.  n    W    604 

470.  57  N.  E.  747.  g^^"  ^,^  ^  ,,, 

9  Hill  V.  Phillips,  14  R.  I.  93; 
Brandon  Mfg.  Co.  v.  Frazer,  47  Vt. 
88,  19  Am.  Rep.  118. 

10  Valpey  v.  Rea,  124  Mass.  99.  '^  ^ose  v.  Rundall.  S6  Wash,  ii:, 

11  Chamberlain  v.  Hugenot  Mfg.      l^^  P^c.  614. 

Co.,  118  Mass.  532.  i'-  St.  Louis,  City  of,  v.  St.  Louie;, 

12  Wright  V.  Ritterman,  27  N.  Y.  I.  M.  &  S.  R.  Co.,  248  Mo.  27,  154 
Super.  Ct.  Rep.  (4  Robt.)  704,  1  S.  \V.  60;  Daniels  v.  Tearney,  102 
Abb.  Pr.  N.  S.  428.  U.  S.  415,  26  L.  Ed.  187. 

727 


1.!  Mills  v.  Parkhurst.   126  N.  Y. 
89,   13   L.   R,  A.  472.  26  X.   E.   1041. 


§543 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  IT, 


tract  and  to  have  a  forfeiture  declared,  is  an  abandonment 
of  a  pending  action  for  the  recovery  of  unpaid  purchase 
money  under  such  contract.^^ 

§  543.  Time  when  election  to  be  made — Notice  of 
ELECTION.  A  right  or  duty  of  election  between  two  or 
more  coexisting  and  conflicting  remedies  or  actions,  by 
relinquishing  one  or  more  of  the  actions  or  remedies  by 
some  positive  act,  must  be  exercised  while  the  remedies 
are  yet  open  to  the  party,^  and  the  election  may  be  made 
before  the  commencement  of  the  action,'-  or  at  any  time 
before  trial.  Thus,  where  a  complaint  set  up  two  causes 
of  action  involving  different  remedies  under  a  conditional 
sale  of  personal  property,  consisting  of  (1)  facts  showing 
a  balance  due  on  the  purchase  price,  and  (2)  facts  show- 
ing that  defendants  had  forfeited  the  right  to  the  prop- 
erty by  reason  of  default  in  payment  of  the  purchase 
price ;  and  the  prayer  was  (1)  for  a  balance  claimed  to  be 
due  upon  the  purchase  price,  and  (2)  for  a  recovery  of 
the  property,  under  which  the  plaintiff  caused  a  seizure 
of  the  property  under  a  writ  of  replevin,  an  answer  to  the 
merits  was  filed  without  objection  to  the  dual  character 
of  the  complaint  and  of  the  remedies  pursued.  On  the 
trial  the  question  of  election  was  raised  by  the  defendant, 
and  the  plaintiff  promptly  declared  that  he  elected  to  pro- 
ceed with  the  replevin.  The  election  was  held  to  have 
been  made  within  time.^ 

Notice  of  election  is  required  to  be  given  in  those  cases 
in  which  the  defendant  is  allowed  time  to  answer  until  the 


16  Rose  V.  Rundall,  86  Wash.  422, 
150  Pac.  614. 
See,  post,  §  549. 

1  San  Bernardino  Invest.  Co.  v. 
Merrill,  108  Cal.  490,  41  Pac.  487. 

See,  also,  ante,  §  536,  footnotes 
5-7. 

2  Election  before  suit  commenced 
in  cases  upon  the  conditional  sale 
of  property. — See  Rainey  v.  Smith, 


56  Wash.  604,  106  Pac.  160;  Stew- 
art &  Holmes  Drug  Co.  v.  Reed. 
74  Wash.  410,  133  Pac.  577;  Win- 
ton  Motor  Carriage  Co.  v.  Broad- 
way Automobile  Co.,  65  Wash.  650, 
37  L.  R.  A.  (N.  S.)  71,  118  Pac.  817; 
Thompson  Co.  v.  Murphim,  79 
Wash.  672,  140  Pac.  1073. 

3  Carolin  v.  Williams,  87  Wash. 
52,  151  Pac.  87. 


728 


ch.  IV.] 


CONCLUSIVENESS  OF  ELECTION. 


§544 


plaintiff  has  elected  on  which  of  two  counts  in  his  com- 
plaint and  of  conflicting  remedies  he  will  proceed  to  trial. 
This  notice  should  be  given  by  the  service  of  a  copy  of  the 
complaint  together  with  a  notice  of  his  election.^ 

§  544.  Conclusiveness  of  election  of  remedies — In 
GENERAL,  In  those  cases  in  which  there  are  coexistent 
remedies  of  an  antagonistic  and  inconsistent  character, 
a  party  is  required  to  elect  which  one  he  will  pursue ;  arid 
having  once  elected,  with  a  full  knowledge  of  all  the  facts, 
he  is  bound  by  his  election,^  and  is  confined  to  the  remedy 
which  he  first  preferred  and  adopted,-  even  though  a 


4Willson  V.  Cleaveland,  30  Cal. 
192. 

1  Iselin  V.  Henlein,  16  Abb.  N.  C. 
(N.  Y.)  73,  2  How.  Pr.  N.  S.  211, 
7  N.  Y.  Civ.  Proc.  Rep.  431;  Rob- 
erts V  Ely,  9  N.  Y.  St.  Rep.  796; 
affirmed,  113  N.  Y.  128,  20  N.  E. 
606;  Stewart  v.  Huntington,  2  N.  Y. 
Supp.  205;  affirmed,  124  N.  Y.  127, 
26  N.  E.  289;  Noyes,  In  re,  5  Dam. 
(N.  Y.)  309. 

Beneficiary  accepting  bounty  of 
testator  can  not  insist  that  pro- 
visions to  his  prejudice  shall  be 
ignored.  —  Noyes,  In  re,  5  Dem. 
(N.  Y.)  309. 

2  Id.  See,  also,  among  other 
cases:  ALA. — Eufaula  Grocery  Co. 
V.  Missouri  Nat.  Bank,  118  Ala.  414, 
24  So.  389.  FLA.— Capital  City 
Bank  v.  Hilton,  64  Fla.  206,  Ann. 
Cas.  1914B,  1211,  60  So.  189.  IDAHO 
— Mark  &  Means  Transfer  Co.  v. 
Mackenzie,  9  Idaho  174,  73  Pac. 
135;  Bernhard  v.  Idaho  Bank  & 
Trust  Co.,  21  Idaho  598,  Ann.  Cas. 
1913E,  120,  123  Pac.  481.  IOWA— 
McLean  v.  Ficke,  94  Iowa  283,  295, 
62  N.  W.  753.  MO.— Nanaon  v. 
.Jacob,  93  Mo.  331,  3  Am.  St.  Rep. 
531    6  S.  W.  246.    NEB.— Turner  v. 


Grimes,  75  Neb.  416,  106  N.  W. 
465.  N.  Y.— Bank  of  Beloit  v.  Beale, 
34  N.  Y.  473;  Rodermund  v.  Clark, 
46  N.  Y.  354;  Kennedy  v.  Thorp, 
51  N.  Y.  176,  reversing  2  Daly  258, 
3  Abb.  Pr.  N.  S.  131;  Fowler  v. 
Bowery  Sav.  Bank,  113  N.  Y.  450. 
10  Am.  St.  Rep.  479,  4  L.  R.  A.  145, 
21  N.  E.  172;  Terry  v.  Munger,  121 
N.  Y.  170,  18  Am.  Rep.  803,  S 
L.  R.  A.  220,  24  N.  E.  270;  Droege 
V.  Ahrens  &  O.  Mfg.  Co.,  163  N.  Y. 
470,  57  N.  E.  747;  Terry  v.  Buck, 
40  App.  Div.  422,  57  N.  Y.  Supp. 
980;  Fields  v.  Bland,  59  How.  Pr. 
85,  8  Abb.  N.  C.  221,  81  N.  Y.  239; 
Boots  V.  Ferguson,  46  Hun  131; 
Cassidy  v.  New  York,  City  of.  62 
Hun  364,  17  N.  Y.  Supp.  71;  Dietz 
V.  Field,  17  Misc.  27.  39  N.  Y.  Supp. 
257;  affirmed,  10  App.  Div.  427,  41 
N.  Y.  Supp.  1087;  Seeman  v.  Band- 
ler,  26  Misc.  372,  374,  50  X.  Y. 
Supp.  210.  OHIO— Becker  v.  Wal- 
worth, 45  Ohio  169,  12  N.  R.  1. 
ORE.— Frances  v.  Bohort,  7J  Oro. 
1,  L.  R.  A.  1910A,  922.  143  Pac.  921). 
147  Pac.  755.  WIS.- Crook  v.  First 
Nat.  Bank,  83  Wis.  42,  35  Am.  St. 
Rep.  17,  52  N.  W.  1131;  Carroll  v. 
Fethers,  102  Wis.  430,  443,  78N.W. 
604. 


729 


§544 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  il, 


judgment  in  liis  favor  on  that  remedy  fails  to  afford  the 
relief  sought,^  and  is  bound  thereby  both  in  the  trial  court 
and  on  appeal.*  But  this  rule  applies,  and  the  party  is 
estopped,  in  those  cases  only  in  which  there  are  two  or 
more  inconsistent  remedies  open  to  him.^  The  rule  ap- 
plies equally  to  the  plaintiff  and  to  the  defendant  in  a 


See  notes  44  L.  R.  A.  (N.  S.)  25, 
L.  R.  A.  1916A,  925. 

Attachment  of  agent's  property 
by  a  person  who  has  been  injured 
through  agent's  act,  bars  subse- 
quent action  against  the  principal 
for  agent's  wrong.  —  McLean  v. 
Ficke,  94  Iowa  283,  62  N.  W.  753. 

Bank  of  deposit  sued  for  amount 
of  draft  precludes  action  against 
bank  of  collection. — Eufaula  Gro- 
cery Co.  V.  Missouri  Nat.  Bank, 
118  Ala.  414,  24  So.  389. 

Election  between  inconsistent 
remedies  made  with  full  knowl- 
edge of  the  facts,  a  party  is  con- 
fined to  the  one  he  has  made. — ■ 
Capital  City  Bank  v.  Hilson,  64 
Fla.  206,  Ann.  Cas.  1914B,  1211,  60 
So.  189. 

Proof  of  claim  before  assignee 
in  insolvency,  bars  subsequent  re- 
scission of  sale  on  ground  of 
fraud,  where  all  the  facts  were 
known  at  time  of  making  proof.^ 
Droege  v.  Ahrens  &  O.  Mfg.  Co., 
163  N.  Y.  470,  57  N.  E.  747. 

Replevin  against  assignee  of  al- 
leged fraudulent  vendee,  bars  ac- 
tion against  vendee  for  purchase 
price.  —  Seeman  v.  Bandler,  26 
Misc.  (N.  Y.)  372,  374,  56  N.  Y. 
Supp.  210. 

Suit  on  bill  of  sale  prosecuted  to 
an  adverse  judgment,  bars  plain- 
tiff subsequently  claiming  title 
never  passed. — Turner  v.  Grimes, 
76  Neb.  416,  106  N.  W.  465. 

3  Roberts  v.  Ely,  9  N.  Y.  St.  Rep. 

7 


796;  affirmed,  113  N.  Y.  128,  20 
N.  E.  606;  Fowler  v.  Bowery  Sav. 
Bank,  113  N.  Y,  450,  10  Am.  St. 
Rep.  479,  4  L.  R.  A.  145,  21  N.  E. 
172. 

One  entitled  to  savings  deposit 
wrongfully  paid  to  another  has  an 
election  (1)  to  sue  the  person 
wrongfully  receiving  the  deposit 
for  money  had  and  received,  or 
(2)  to  sue  the  bank  for  the  de- 
posit; and  having  elected  to  pur- 
sue the  first  remedy  he  loses  all 
right  of  action  against  the  bank, 
even  though  the  judgment  recov- 
ered is  uncollectable. — Fowler  v. 
Bowery  Sav.  Bank,  113  N.  Y.  450. 
10  Am.  St.  Rep.  479,  4  L.  R.  A.  145. 
21  N.  E.  172.  See  Jones  v.  First 
Nat.  Bank,  3  Neb.  Unof.  79,  90 
N.  W.  912;  Crook  v.  First  Nat. 
Bank,  83  Wis.  42,  35  Am.  St.  Rep. 
17,  52  N.  W.  1131. 

Compare:  Wood  v.  Claiborne,  82 
Ark.  520,  118  Am.  St.  Rep.  89,  11 
L.  R.  A.  (N.  S.)  916,  102  S.  W.  219. 

•1  Ensworth  v.  Barton,  60  Mo. 
511;  Dunn  v.  White,  63  Mo.  181; 
Carson  v.  Cummings,  69  Mo.  325; 
Clements  v.  Yeates,  69  Mo.  623; 
Bray  v.  Seligman,  75  Mo.  31;  Sum- 
ner V.  Rogers,  90  Mo.  324;  Wilson 
V.  St.  Louis,  I.  M.  &  S.  R.  Co. 
(Mo.).  2  S.  W.  266. 

See,  ante,  §  530. 

5  Fuller-Warren  Co.  v.  Harter, 
110  Wis.  80,  84  Am.  St.  Rep.  807, 
53  L.  R.  A.  603.  85  N.  W.  698. 

See,  ante,  §  536,  footnotes  5-7. 
30 


Ch.  IV,]  ABANDONMENT  OF  ELECTION.  §§  545,  546 

cause ;  and  a  defendant  making  an  election  between  incon- 
sistent remedies  open  to  him  as  a  defense  to  the  action, 
having  had  his  day  in  court,  can  not  maintain  a  suit  in 
equity  to  set  aside  the  judgment  recovered  against  him.'' 

§  545.    Abandonment  or  withdrawal  of  election. 

An  election  between  inconsistent  remedies  having  been 
once  made,  with  a  full  knowledge  of  the  facts,  it  can  not 
be  withdrawn  without  the  consent  of  the  opposite  part}' 
thereto,  even  though  it  has  not  been  acted  on,  and  tlie 
positions  of  the  parties  have  in  no  wise  changed.^  From 
this  it  follows  that  a  party  having  once  elected  between 
two  inconsistent  remedies  available  to  him  under  the 
same  state  of  facts,  and  prosecuted  the  action  to  judg- 
ment under  that  remedy,  he  can  not  thereafter  abandon 
the  remedy  and  proceed  under  another  and  inconsistent 
remedy.^ 

§  546.  Mistake  in  remedy  pursued.     The  law  is 

well  settled  to  the  effect  that  w^here  a  party,  having  but 
one  remedy  ojDen  to  him,  in  a  mistaken  belief  that  he  has 
another  remedy,  and  in  attempting  to  enforce  such  otlier 
supposed  remedy  pursues  it  to  an  adverse  decision  and 
judgment,  this  will  not  estop  him  from  thereafter  suing 
upon  the  proper  cause  of  action,  pursuing  the  proper 
remedy — the  only  remedy  open  to  him  in  the  first  in- 
stance.^   The  reason  for  this  rule  is  that,  by  pursuing  a 

6  Bernhard    v.    Idaho    Bank    &  Trust  Co.,  21  Idaho  598.  Ann.  Gas. 

Trust  Co.,  21  Idaho  598,  Ann.  Cas,  1913E,  120,  123  Pac.  481. 

1913E,  120,  123  Pac.  481.  See,  also,  cases,  ante,  §  544.  foot- 

1  Capitol  City  Bank  v.  Hilson,  C4  notes  4  and  6. 

Fla.  206,  Ann.  Cas.  1914B,  1211,  60  i  Amons  many  other  cases,  see: 

So.    189;    Kinney    v.    Kiernan,    49  CAL. — Agar  v.   Winslow.   123   Cal. 

N.  Y.  164,  reversing  2  Lans.  492;  587.   69   Am.  St.    Rep.   C4.   56   Pac. 

Mendenhall  V.  Mendenhall,  53N.C.  422.     FLA.— Capital   City  Bank   & 

(8  Jones  L.)  287;  Jones  v.  Gerock.  Trust  Co.  v.   Hilson,  64   Fla.    206, 

59  N.  C.  (6  Jones  Eq.)   190;   Syme  Ann.  Cas.  1914B,  1211.  60  So.  189. 

V.  Badger,  92  N.  C.  706;  Yorkly  v.  IDAHO— Elliott  v.  Collins.  6  Idaho 

Stinson,  97  N.  C.  236,  240,  1  S.  E.  266,  55  Pac.  301.     ILL.— Fisher  v. 

452.  Brown,   111   111.  App.   486.     IND.— 

-  Bernhard    v.    Idaho    Bank    &  Bunch  v.  Grove,  111  Ind.  351,  12 

731 


§  546  CODE  PLEADING  AND  PUACTICE.  [Pt.  II, 

mistaken  remedy,  he  does  not  thereby  waive  his  proper 
remedy ;-  because  the  doctrine  of  the  election  of  remedies, 
as  we  have  already  seen,  applies  in  those  cases  only  in 
which  there  are  coexistent  inconsistent  remedies.^  Thus, 
an  unsuccessful  pursuit  of  an  inapplicable  remedy,  either 
because  (1)  the  facts  turn  out  to  be  different  from  what 
the  party  supposed  them  to  be,  or  (2)  because  the  law 
applicable  to  the  state  of  facts  is  different  from  what  the 
party  believed  it  to  be,  and  the  cause  proceeds  to  an 
adverse  judgment,  this  will  not  preclude  the  party  from 
thereafter  pursuing  the  proper  remedy.'*  An  instance  in 
point  is  where  a  party  having  a  right  of  action  in  assump- 
sit on  a  contract  of  sale  for  the  price  of  goods  deliverer!, 
he  is  not,  by  mistakenly  bringing  an  action  in  trover  to 
recover  the  possession  of  the  goods,  precluded  from  there- 
after maintaining  his  proper  action  in  assumpsit.^  An 
action  for  a  breach  of  warranty  being  the  only  remedy 
open  to  a  party,  a  mistaken  attempt  to  enforce  a  recovery 
on  the  theory  that  the  contract  has  been  rescinded,  does 

N.  E.  54.     IOWA— Zimmerman   v.  St.    Rep.   867,   53    L.    R.  A.  603,   85 

Robinson,  128  Iowa  72,  102  N.  W.  N.  W.  698;    Rowell  v.   Smith,  123 

814.   ME.— Clark  v.  Heath,  101  Me.  Wis.    510,    3    Ann.    Cas.    773,    102 

530,  8  L.  R.  A.  (N.  S.)  144,  64  Atl.  N.    W.    1.      FED.— Elgin    National 

913.     MASS.— Peters  v.  Ballister,  Watch  Co.  v.  Meyer,  29  Fed.  225. 
20  Mass.   (3  Pick.)    495.     MISS.—  2  Capital  City  Bank  &  Trust  Co. 

Conn  V.  Bernheimer,  67  Miss.  498,  v.  Hilson,   64  Fla.   206,   Ann.  Cas. 

7    So.    345;    Tucker  v.   Wilson,   68  1914B,  1211,  60  So.  189;  Rowell  v. 

Miss.  693,  9  So.  898.    NEB.— State  Smith,  123  Wis.  510,  3  Ann.  Cas. 

V.  Bank  of  Commerce,  61  Neb.  22,  773,  102  N.  W.  1. 
84  N.  W.  406;   Omaha,  City  of,  v.  One  proper  remedy  only  existing 

Redick,  61  Neb.  163,  85  N.  W.  48.  by  which  to  deal  with  the  subject- 

ORE. — Powell  V.  Dayton,  S.  «&  G.  matter,    use    of    an    inappropriate 

R.  Co.,  16  Ore.  33,  8  Am,  St.  Rep.  remedy  by  mistake,  does  not  con- 

251,  16  Pac.  863;   Morris  v.  Sher-  stitute  a  waiver  of  the  proper  rem- 

idan.  City  of,  86  Ore.  224,  167  Pac.  edy.— Rowell    v.    Smith,    123   Wis. 

593;    Oregon   Mill  &   Grain   Co.   v.  510,  3  Ann.  Cas.  773,  102  N.  W.  1. 
Hyde.   87   Ore.   517,   169   Pac.   791.  3  See,  ante,  §  536,  footnotes  5-7. 

UTAH— Detroit  Heating  &  Light-  4  Rowell  v.  Smith,  123  Wis.  510, 

ing  Co.  V.    Stevens,   20  Utah  241,  3  Ann.  Cas.  773,  102  N.  W.  1. 
58  Pac.  193.    WIS.— Fuller-Warren  5  Clark  v.  Heath,  101  Me.  530,  8 

Co.  V.  Harter,  110  Wis.  80,  84  Am.  L.  R.  A.  (N.  S.)  144,  64  Atl.  913. 

732 


I 


eh.  IV.]       APPLICATION  OF  DOCTRINE  OF  ELECTION.         §  547 

not  preclude  him  from  thereafter  bringing  and  prose- 
cuting an  action  for  breach  of  warranty.*'  Likewise,  rely- 
ing for  his  defense  to  an  action  upon  rescission  of  a 
contract  pleaded,  and  which  is  an  issue  raised  by  the 
pleadings,  but  upon  which  a  recovery  is  impossible,  a 
party  is  not  thereby  precluded  from  thereafter  claiming 
damages  for  plaintiff's  breach  of  contract— this  being  tlie 
sole  remedy  that  was  originally  open  to  him."  An  eject- 
ment suit  mistakenly  instituted  by  one  to  whom  tlie 
remedy  is  not  available,  will  not  prevent  him  from  there- 
after maintaining  his  proper  remedy  for  unlawful  deten- 
tion.s  Where  an  action  for  compensation  for  services  is 
defended  on  the  theory  that  plaintiff  has  mistaken  his 
remedy,  and  the  defendant  thereupon  asks  for,  and  is 
given,  a  nonsuit  without  the  plaintiff's  objecting,  the 
plaintiff  is  not  necessarily  concluded,  on  the  ground  of 
having  elected  his  remedy,  from  recovering  in  a  new  form 
of  action,  the  money  he  claims  to  be  due."  Many  other 
specific  illustrations  of  the  rule  will  be  found  in  the 
various  cases  cited  in  the  first  footnote  to  this  section. 

•§  547.  Application  of  doctpjne  of  election — In  gen- 
eral. The  rules  governing  the  doctrine  of  election  of 
remedies,  as  set  out  in  the  preceding  sections  of  this 
chapter,  have  been  illustrated,  to  a  limited  extent,  in  the 
course  of  the  statement  of  the  rules  and  the  reasons  tliero- 
for.  It  may  be  assistful  and  advantageous  to  the  busy 
practitioner,  without  attempting  to  be  exhaustive  either 
of  the  causes  subject  to  election  of  remedies  or  the  deci- 
sions under  the  instances  given,  to  set  out  briefly  some 
specific  illustrations  of  the  doctrine  of  election  as  applied 
to  some  of  the  main  topics  likely  to  arise  in  daily  practice. 

6  Zimmerman   v.    Robinson,    12S  s  Agar  v.  Winslow,  123  Cal.  5S7, 
Iowa  72.  102  N.  W.  814.  69  Am,  St.  Rep.  64,  56  Pac.  422. 

7  Detroit  Heating  &  Lighting  Co.  n  Morris  v.  Sheridan,  City  of,  86 
V.   Stevens,  20   Utah   241,   58   Pac.  Ore.  224,  167  Pac.  593. 

193. 

733 


5  54:8  code  pleading  and  puactice.  [pt.  11, 

'§548.    Acceptance  of  assets  and  assumption  of 

DEBTS  of  partnership.  In  the  case  of  an  agreement  by  a 
person  to  accept  the  interest  of  a  retiring  member  of  a 
partnership  and  pay  the  partnership  debts,  the  relation 
of  principal  and  surety  is  created  between  the  continuing 
and  the  retiring  partner  ;^  but  this  relation  is  not  created 
as  to  the  creditors  of  the  partnership  who  do  not  assent 
to  the  arrangement;-  those  American  cases  holding  that 
notice  to  the  creditors  of  such  an  arrangement  raises  the 
relation  of  principal  and  surety  as  to  the  creditors  of  the 
firm  also^  are  founded  upon  a  misconception  of  the  Eng- 
lish case"*  upon  which  they  profess  to  found  their  deci- 
sions, because  in  the  English  case  the  creditor  consented 
to  the  arrangement  and  thereby  became  a  party  to  it.^ 
Where  the  continuing  partner  fails  to  carry  out  his  agree- 
ment as  to  the  payment  of  the  partnership  debts,  the 
retiring  partner  will  have  one  of  two  remedies,  to-wit: 
(1)  An  action  at  law  or  (2)  a  suit  in  equity,  according  to 
the  status  of  matters  at  the  time  of  seeking  relief;  and 
a  mistake  in  his  remedy  mil  bring  defeat  to  his  cause. 
The  usual,  and  it  may  be  the  only,  remedy  of  the  retiring 
partner  is : 

1  Dean  &  Co.  v.  Collins,  15  N.  D.  71  Tex.  712,  12  S.  W.  51;   Barnes 

535,  125  Am,  St.  Rep.  610,  9  L.  R.  A.  v.  Boyers,  34  W.  Va.  303,  12  S.  E. 

(N.   S.)    49,    108   N.   W.   242.     See  '^08;   First  Nat.  Bank  v.  Fisk,  100 

Moore    w.    Topliff,    107    111.    241;  Wis.  446,  76  N.  W.  608;  Shepherd 

Wendland  v.  Shore,  37  Minn.  162.  ^-   M^^'   ^^   U.   S.   505,   29    L.   Ed. 

■^3  N    W    "00  ^^^'  ^  ^"P"  ^*"  -^^P'  ■^^^'   ^®"®''  ^■ 

"        •        •    '      •  Ashford,   133  U.  S.  610,  33   L.   Ed. 

2  Dean  &  Co.  v.  Collins,  15  N.  D.      qq^^   ^q   ^^^    ^^^    j^^p    ^g^ 

535,  125  Am.  St.  Rep.  610,  9  L.  R.  A.  3  Smith  v.  Sheldon,  35  Mich.  42, 
(N.  S.)  49,  108  N.  W.  242.  See  24  Am,  Rep.  529;  Colgrove  v.  Tall- 
Hall  V.  Jones,  56  Ala.  493;  ConweU  man,  67  N.  T.  95,  23  Am.  Rep.  90. 
V.  McGowan,  81  111.  285;  McAreavy  -t  Oakeley  v.  Pasheller,  4  Clark 
V.  Magirl,  123  Iowa  605,  99  N.  W.  &  F.  207,  7  Eng.  Repr.  80. 
193;  Rawson  v.  Taylor,  30  Ohio  St.  5  Dean  &  Co.  v.  Collins,  15  N.  D. 
289,  27  Am.  Rep.  464;  Whittier  v.  535,  125  Am.  St.  Rep.  610,  9  L.  R.  A. 
Gould,  8  Watts  (Pa.)  485;  Shap-  (N.  S.)  49,  108  N.  W.  242;  Shap- 
leigh  Hardware  Co.,  A.  F.,  v.  leigh  Hardware  Co.,  A.  F.,  v. 
Wells,  90  Tex.  110,  59  Am.  St.  Rep.  Wells,  90  Tex.  110,  59  Am.  St.  Rep. 
7S3,  37  S.  W.  411;  White  v.  Boone,  783,  37  A.  W.  411. 

734 


eh.  IV.]  ELECTION ACCEPTANCE  OF  ASSETS.  §  O-iS 

1.  An  action  at  law  to  recover  damages  against  the 
continuing  partner  for  breach  of  contract  f  and  the  meas- 
ure of  damages  on  such  an  action  is  the  sum  of  the  debts 
agreed  to  be  paid/  or  so  much  thereof  as  remains  unpaid,*^ 
or  the  amount  the  retiring  partner  has  been  compelled 
to,  or  has,  paid,**  together  with  interest  thereon  at  the 
legal  rate,  in  the  absence  of  any  stipulation  in  the  agree- 
ment as  to  interest.^"  A  court  of  equity  will  have  no  juris- 
diction in  such  a  case  so  long  as  there  is  an  ade(|uate 
remedy  at  law,^^  unless  a  creditor  releasing  the  retiring 
partner  and  agreeing  to  look  to  the  continuing  partner 
brings  suit  against  such  retiring  partner  in  violation  of 
the  agreement  to  which  he  was  a  party,  in  which  case 
the  retiring  partner  may  maintain — 

2.  A  suit  in  equity  to  enjoin  a  judgment  supposed  to 
have  been  rendered  against  him  by  default,  in  which  the 
continuing  partner  was  not  served. ^^  And  in  the  absence 
of  assent  by  a  creditor  to  the  arrangement,  on  suit 
brought  against  the  retiring  partner  he  may  apply  to  a 
court  of  equity  to  compel  the  continuing  partner  to  re- 
lieve him  of  responsibility  for  and  liability  on  the  claim 
upon  which  suit  is  brought. ^^ 

6  Clark  V.  Clark,  9  Port.    (Ala.)  lo  Lathrop  v.  Atwood,  21  Conn. 

9;     Brewer    v.     Worthington,     94  117;  Myers  v.  Smith,  15  Iowa  181. 

Mass.  (10  Allen)  329.  See  ^^^^  9  l.  r.  a.  (N.  S.)   107. 

'  Parnsworth  v.   Boardman,   131 


11  Clark  V.  Clark,  4  Port.  (Ala.) 
9;  Kellogg  v.  Moore,  97  111.  282; 
Clarke's  Appeal,  107  Pa.  St.  436; 
Stein  V.  Benedict,  83  Wis.  603,  53 
N.  W.  891. 


Mass.    115;    Ham   v.   Hill,   29    Mo 

275;  Wilson  v.  Stilwell,  9  Ohio  St 

467,  75  Am.    Dec.  477. 

8  Lathrop   v.   Atwood,   21    Conn 

117;    Mullendore  v.  Scott,  45  Ind 

113  12  Rice  V.  Tobias,  89  Ala.  214,  7 

oHinckle  v.  Reid,  43  Ind.  390;  So.    765. 

Vanness    v.    Dubois,    64    Ind.    338;  i3  West  v.  Chasten,  12  Fla.  315, 

Myers   v.    Smith,   15   Iowa   181;  Moore  v.  Topliff,  107  111.  241;  Sco- 

Wright   V.    Scwall,    9    Rob.    (La.)  ville    v.    Kinsley,    79    Mass.     (13 

128;  Bunton  v.  Dunn,  54  Me.  152;  Gray)  5;  Robb  v.  Stevens,  1  Clarke 

Nichols    V.    Prince,    90    Mass.    (8  Ch.   (N.  Y.)   191;   Still  v.  Holland, 

Allen)   404;   Barber  v.  Gillison,  18  1  Ohio  Dec.  Repr.  584;    Biddle   v. 

Nev.  89,  1  Pac.  452.  Moore,  3  Pa.  St.  161. 

735 


§  549  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

•^  549.    Approbating  and  reprobating.     We  have 

already  seen^  that  a  party  can  not  be  permitted,  at  one 
and  the  same  time,  to  approbate  and  reprobate,  to  affirm 
and  rescind  a  contract.  That  is  to  say,  a  person  can  not 
proceed  as  upon  a  disaffirmance  of  a  contract  and  at  the 
same  time  retain,  and  attempt  to  collect,  the  purchase 
price  of  the  property  involved  in  the  contract;-  claim 
proceeds  in  hands  of  agent  making  sale  of  property  and 
seek  to  set  aside  the  sale;^  insist  that  contract  is  in  full 
force  and  maintain  action  to  rescind  it  ;^  seek  to  set  aside 
assignment  for  benefit  of  creditors  by  his  debtor  and 
participate  in  the  distribution  of  the  assigned  estate;^ 
accept  complete  delivery  of  goods  and  maintain  action 
to  offset  damages  for  not  delivering  as  per  contract 
against  contract  price  f  maintain  action  for  damages  for 
breach  of  contract  and  one  to  terminate  contract  because 
of  breach  of  conditions ;"  maintain  action  for  conversion 
by  le\^'  of  an  attachment  and  attack  the  levy  as  invalid  f 
majority  stockholder  can  not  have  personal  judgment 
for  stock  the  beneficial  ownership  of  which  he  retains  ;'* 

1  See,  ante,  §  542,  footnotes  14-16.  3  Robb  v.  Vos,  155  U.  S.  41,  39 

-:  Smith  v.  Gilmore,  7  App.  D.  C.  L.  Ed.  62,  15  Sup.  Ct.  Rep.  4. 

201;    Hogan   v.    Shorb,    24    Wend.  4  Garrett   v.    Farwell    Co.,    John 

(N.  Y.)  460;  Whitney  v.  Allaire,  4  ^     ^^^  ^jj              ^^ 

Den.  (N.  Y.)  554;  affirmed,  1  N.  Y. 

305,   4    How.    Pr.   447;    Conrow   v.  ^  Mills    v.    Parkhurst,    9    N.    Y. 

Uttle,  115  N.  Y.  387,   5   L.    R.  A.  Supp.  109.     But  this  doctrine  was 

693,    22    N.    E.    346;    Wheaton    v.  modified  on  appeal.     See,  ante. 

Baker,  14  Barb.  (N.  Y.)   594,  601;  §542,  footnote  13. 

Ramsey   v.   Smith,   56  Wash.   604,  ^  Brady    v.    C  a  s  s  i  d  y,   9   Misc. 

106  Pac.  160;    Winton  Motor  Car  ^^^  y.)  114,  29  N.  Y.  Supp.  45. 

Co.    V.    Broadway    Auto    Co      65  ;  ^^^^^  ;    j^^/^^'^^^  &  Hudson 

Wash.  650,  37  L.  R.  A.  (N.  S.)    .1,  ^^^^^             ^8   App.    Div.    (N.   Y.) 

118   Pac.  817;    Stewart  &  Holmes  333    ^^  ^    ^                3^^ 

Drug  Co.   V.   Reed,   74   Wash.   401, 

133    Pac.    577;    Thompson    Co.    v.  « Marx   v.    Crancimino,    59    App. 

Murphine.  79  Wash.  672,  140  Pac.  Div.    (N.  Y.)    571.  69  N.  Y.   Supp. 

1073;    Rose  v.  Rundall,  86  Wash.  ^72. 

422,  150  Pac.  614.  '-^  Farmers'  Loan  &  Trust  Co.  v. 

See,  also,  footnote  10,  this  sec-  Toledo  &  S.  H.  R.  Co.,  54  Fed.  766, 

tion.  4  C.  C.  A.  569,  9  U.  S.  App.  469. 

736 


ch.  IV.]  ELECTION — ATTACHMENT,  ETC.  §  550 

seller  can  not  maintain  action  of  replevin  against  an 
assignee  of  the  purchaser,  for  a  portion  of  the  property, 
and  one  against  the  purchaser,  on  contract,  for  the  bal- 
ance of  the  goods  ;^°  an  action  for  conversion  and  one 
in  contract  for  the  same  property  ;^^  disaffirm  discounts 
of  drafts  and  sue  for  the  proceeds  of  such  drafts  ;^-  prove 
claim  in  bankruptcy  and  maintain  an  action  for  the 
return  of  the  goods  in  the  baii!:rupt's  possession  ;^^  pur- 
chaser can  not  claim  rescission  of  contract  of  sale  of 
goods  because  of  breach  by  seller  and  claim  damages 
arising  out  of  such  breach  ;^^  vendee  can  not  maintain 
an  action  for  reformation  of  contract  and  insist  on  its 
rescission  on  the  ground  of  fraud  ;^^  vendor  can  not  exer- 
cise option  under  conditional  contract  to  enforce  pay- 
ment of  note  given  for  purchase  price  and  claim  a  right 
to  retake  the  property  upon  default,  even  though  he  is 
unable  to  collect  a  judgment  on  the  note,  because  of  the 
l^urchaser's  insolvency,^^ — and  the  like. 

§  550.    Attachment  and  replevin.     The  general 

rule  of  law  is  that  an  attachment  of  property  for  the 
purchase  price  thereof  has  the  effect  to  affirm  the  con- 
tract of  sale,  even  though  there  was  fraud  on  the  part 
of  the  purchaser  in  procuring  credit,  where  the  attach- 
ment was  procured  with  knowledge  of  such  fraud, ^  and 

10  Schoeneman  v.  Chamberlain,  16  Crompton  v.  Beach,  62  Conn. 
55  App,  Div.  351,  355,  67  N.  Y.  25,  36  Am.  St.  Rep.  323,  18  L.  R.  A. 
Supp.  284.                                                      187,  25  Atl.  446. 

See,  also,  authorities  in  footnote  iSickman  v.  Abernathey,  14 

2,  this  section.  Colo.  174,  23  Pac.  447;   BuIUley  v. 

11  Hess  V.  Smith,  16  Misc.  (N.  Y.)  Morgan,  46  Conn.  393;  Gray  v.  St. 
55,  37  N.  Y.  Supp.  635.  John,  35  HI.  222;  Butler  v.  Hildreth, 

12  Davis  V.  Buttes  Lumber  Co.,  46  Mass.  (5  Mete.)  49;  Lloyd  v, 
132  N.  C.  239,  43  S.  E.  650.  Brewster,  4  Paige  Ch.  (N.  Y.)  537, 

13  Hildebrandt,  In  re,  120  Fed.  27  Am.  Dec.  88;  Conrow  v.  Little, 
996.  115  N.  Y.  387,  5   L.   R.  A.  693,   22 

14  Main  v.  Procknow,  131  Wis.  N.  E.  346;  Benedict  v.  National 
279.  282,  111  N.  W.  508.  Bank  of  Commerce,  4  Daly  (N.  Y.) 

15  Pfeiffer  v.  Marshall,  136  Wis.  171;  Wright  v.  Price.  4  Hun  (N.Y.) 
51,  62,  IIG  N.  W.  871.  351,  6  Thomp.  &  C.  651. 

I  Code  PI.  and  Pr.— 47  737 


§  551  Code  pleading  and  practice.  [Pt.  II, 

this  will  constitute  such  an  election  of  remedies  as  will 
prevent  a  rescission  of  the  contract  and  replevin  of  the 
property;  but  a  somewhat  conflicting  doctrine  has  been 
announced  in  a  Massachusetts  case,^  presenting  a  peculiar 
illustration  of  the  difficulties  in  applying  the  doctrine  of 
election  of  remedies,  it  being  held  in  the  Massachusetts 
case  that  an  attachment  in  an  action  in  trover  did  not 
estop  the  party  to  subsequently  replevin  the  property; 
but  it  must  be  remembered  that  an  action  in  trover  is  in 
the  nature  of  an  action  ex  delicto  and  not  of  an  action 
ex  contractu.  In  those  cases  in  which  the  attachment  is 
based  on  the  fraud  of  the  purchaser  in  procuring  credit, 
a  different  rule  seems  to  prevail,  in  that  case  the  attach- 
ment not  necessarily  constituting  a  ratification  of  the 
contract;^  and  yet  it  has  been  held  that  an  attachment 
for  the  purchase  price  mil  not  bar  a  subsequent  suit  upon 
a  purchase-money  note  for  the  goods,'*  the  remedies  being 
concurrent  and  not  inconsistent.^  Rescission  of  the  con- 
tract by  the  replevin  of  the  goods  will  prevent  an  attach- 
ment on  the  ground  that  the  purchaser  has  assigned  the 
property  with  the  intent  to  defraud  his  creditors.*' 

§  551.     CoMMON-LAW  and  STATUTORY  REMEDIES.    TllC 

procedural  codes  abolish  the  common-law  forms  of 
actions,  as  we  have  already  seen,^  but  do  not  affect  the 
classification  of  actions  and  the  principles  controlling  in 
the  different  classes  of  common-law  actions ;-  they  remain 
the  same,  and  the  law  to  be  administered  in  each  class 
depends  as  much  as  formerly  upon  the  nature  and  form 

2  Miller  v.  Hyde,  161  Mass.  472,      Co.,  127  N.  Y.  34,  13  L,  R.  A.  91,  27 
42  Am.   St.   Rep.   424,  25   L.   R.  A.      N.  E.  400. 

42,  19  N.  E.  760.  5  See,  ante,  §§  539,  540. 

I  do  not  find  that  this  case  has  6  Thompson   v.   Fuller,   5   S  i  1  v. 

ever  been  cited  or  followed  on  this  Sup.  Ct.  Rep.   (N.  Y.)   41,  8  N.  Y. 

point.  Supp.  62. 

3  Dean  v.  Yeates,  22  Ohio  St.  388.  5  See,  ante,  §  523. 

4  Grossman  v.  Universal  Rubber  2  See,  ante,  §§  524  et  seq. 

738 


I 


ch.  IV.] 


COMMON-LAW  AND  STATUTORY  REMEDIES. 


§  551 


of  the  action.^  Where  the  common-law  remedies  and  the 
remedies  provided  by  statute  are  concurrent,  a  party 
will  have  an  election  of  remedies  ;^  but  where  the  statute 
supplants  the  common  law,  there  can  be  no  election. 
We  shall  presently  see  that  the  personal  representative 
suing  for  damages  for  the  death  of  his  decedent,  caused 
by  negligence,  must  elect  between  (1)  the  common-law 
right  of  action  for  mental  and  physical  suffering  of  his 
intestate,  and  (2)  the  statutory  cause  of  action  for  his 
death. ^  A  common-law  remedy  is  not  taken  away  by  a 
statutory  remedy  to  enforce  the  same  right  or  to  redress 


3  Omaha  &  Grant  Smelting  & 
Refining  Co.  v.  Tabor,  13  Colo.  41, 
16  Am.  St.  Rep.  185,  5  L.  R.  A.  236, 
21  Pac.  925. 

4  Southern  R.  Co.  v.  Moore,  133 
Ga.  806,  26  L.  R.  A.  (N.  S.)  851,  67 
S.  E.  85  (penalty  for  failure  to  fur- 
nish cars  by  carrier  not  exclusive, 
see  footnote  9,  this  section); 
Thomas  v.  Marysville  Gas  Co.,  108 
Ky.  224,  53  L.  R.  A.  147,  55  S.  W. 
153  (administrator  of  person  killed 
by  negligence  must  elect.  See, 
post,  §§  561,  562.  568) ;  Lee  v.  Hill- 
man,  74  Wash.  408,  Ann.  Cas. 
1915A,  759,  L.  R.  A.  1918B,  581,  133 
Pac.  583  (statutory  remedy  for 
usury  not  exclusive);  Billmyre 
Lumber  Co.  v.  Merchants'  Coal  Co., 
66  W.  Va.  696,  26  L.  R.  A.  (N.  S.) 
1101,  66  S.  E.  1073  (statute  for 
winding  up  corporation  not  exclu- 
sive) ;  Atkinson  v.  Virginia  Oil  & 
Gas  Co.,  72  W.  Va.  707,  48  L.  R.  A. 
(N.  S.)  167,  79  S.  E.  647  (statute 
requiring  plugging  abandoned  oil 
and  gas  wells  not  exclusive) ;  Nar- 
ramore  v.  Cleaveland,  C.  C.  &  St. 
L.  R.  Co.,  37  C.  C.  A.  499,  48  L.  R.  A. 
68,  96  Fed.  298  (penalty  for  failure 
to  block  switches  not  exclusive) ; 
Walker  v.   Globe  Newspaper  Co., 


72  C.  C.  A.  77,  2  L.  R.  A.  (N.  S.) 
913,  140  Fed.  305  (statutory  rem- 
edy for  infringement  of  patent 
does  not  exclude  common-law 
remedy). 

Statutory  remedy  exclusive  in 
following  cases. — Walker  v.  Chans- 
lor,  153  Cal.  118,  126  Am.  St.  Rep. 
61,  17  L.  R.  A.  (N.  S.)  455.  94  Pac. 
606  (remedy  for  one  forcibly  ex- 
pelled from  land);  Winfree  v. 
Northern  Pac.  R.  Co.,  97  C.  C.  A. 
392,  44  L.  R.  A.  (N.  S.)  841,  173 
Fed.  65  (action  by  administrator 
for  benefit  of  parents  of  minor 
killed  by  another's  negligence). 

As  to  alternative  remedies  open 
to  woiknien,  or  to  their  depen- 
dents, injured  in  the  course  of 
their  employment,  see  note  L.  R.A. 
1916A,   72. 

As  to  exclusiveness  of  Work- 
men's Compensation  Act,  see  note 
L.  R.  A.  19 16 A,  22:!. 

Right  to  recover  back  usurious 
interest  paid,  in  the  absence  of  a 
statutory  provision.  See  note 
L.  R.  A.  191813,  585. 

— Effect  upon  of  statute  provid- 
ing another  remedy.  See  note  Ann. 
Cas.  1915A,  762. 

5  See,  post.  §§  561,  562,  568. 


739 


§  552  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

the  same  grievance  or  wrong,  unless  the  statute  (1)  ex- 
pressly denies  the  common-law  remedy,  or  (2)  is  clearly 
so  repugnant  to  it  as  to  imply  that  it  is  negatived  or 
superseded  by  the  statute.^  Thus,  a  statutory  remedy 
for  a  constitutional  right  to  damages  for  property  taken 
under  the  power  of  eminent  domain,  is  not  exclusive 
where  it  gives  to  the  owner  no  power  to  enforce  the  pay- 
ment of  the  damages  awarded  for  the  property  taken  and 
for  injuries  to  property  not  taken,  as  the  same  are 
assessed  to  him/  And  a  statute  providing  for  the  fixing 
of  the  time  within  which  cars  must  be  furnished  by  a  car- 
rier after  a  demand  therefor,  and  a  penalty  per  diem 
for  every  day  the  carrier  fails  to  furnish  them  after  the 
lapse  of  such  time,  does  not  take  away  the  common-law 
remedy  for  damages  on  the  ground  that  the  carrier  failed 
to  perform  a  public  duty;^  and  a  rate-regulating  statute, 
which  furnishes  no  ci\dl  remedy  to  the  shipper,  does  not 
take  away  the  latter 's  common-law  right  of  action  for 
damages  on  account  of  discrimination.^ 

^  552.     COXTINUING  NUISANCE  AND  TRESPASS.     lu  the 

case  of  a  continuing  nuisance  in  the  nature  of  a  trespass, 
in  which  the  injur}-  to  the  land  or  other  property  is  of  a 
permanent  character,  going  to  the  entire  value  of  such 
property,  there  are  cases  which  hold  that,  in  the  absence 
of  a  statute  providing  otherwise,  there  can  be  but  one 
action  to  recover  for  such  damages  past,  present,  and 

6  Chicago  &  Indianapolis  Coal  R.  8  Southern  R.  Co.  v.  Moore,  133 
Co.  V.  Hall,  135  Ind.  91,  23  L.  R.  A.  Ga.  806,  26  L.  R.  A.  (N.  S.)  851,  07 
231,    34    N.    E.    704;     Winfree    v.      S.  E.  85. 

Northern  Pac.  Co.,  97  C.  C.  A.  392,  See  full  collection  of  authorities 

44   L.   R.  A.   (N.  S.)   841,  173   Fed.  note  26  L.  R.  A.  (N.  S.)  851. 

C5.  9  S  u  1 1  i  V  a  n  V.  Minneapolis   & 

7  Hickman  v.  Kansas  City,  120  Rainy  River  R.  Co.,  121  Minn.  488, 
Mo.  110,  41  Am.  St.  Rep.  684,  23  45  L.  R.  A.  (N.  S.)  612,  142  N.  W. 
L.  R.  A.  658,  25  S.  W.  225.  See  3.  See  Hickman  v.  Kansas  City, 
Sullivan  v.  Minneapolis  &  Rainy  120  Mo.  110.  41  Am.  St.  Rep.  684, 
River   R.    Co.,    121    Minn.    488,    45  23  L.  R.  A.  658,  25  S.  W.  225. 

L.  R.  A.  (N.  S.)  612,  142  N.  W.  3.  See,  also,  note  45  L.  R.  A.  (N.  S.) 

See,  also,  note  23  L.  R.  A.  658.      612. 

740 


eh.  IV.]  CONTINUIXG  NUISANCE — CONTRACT.  §  553 

future;^  but  there  is  another  line  of  cases  which  holds 
that  successive  actions  may  be  brought  for  a  nuisance  in 
the  nature  of  a  continuing,  or  a  recurring,  trespass.- 
The  right  is  recognized  by  some  cases  to  elect  (1)  to 
sue  in  one  action  for  all  damages  past,  present,  and  to 
accrue  in  the  future,  or  (2)  to  sue  for  temporary  dam- 
ages for  injuries  actually  sustained,  and  to  bring  succes- 
sive suits  for  successive  instances  or  resultant  damage. 
The  cases  are  numerous  and  not  altogether  satisfactory, 
some  turning  upon  a  rule  conceived  to  be  applicable  to 
the  facts  of  the  particular  case,  others  controlled  by 
statutory  provisions.  To  discuss  them  in  detail,  or  even 
to  refer  to  them  by  title  and  book,  would  require  more 
space  than  can  be  devoted  to  the  subject  in  this  treatise, 
and  we  must  be  content  with  a  merely  assistful  reference.^ 

§  553.  Contract — In  general.  In  the  case  of  con- 
tracts, as  in  the  case  of  other  relations,  a  party  can  not 
be    permitted    to    assume   inconsistent    positions  ;^    and 

1  Turner  v.  Overton,  86  Ark.  406,  2  Bowers  v.  Mississippi  River 

20  L.  R.  A.  (N.  S.)  894,  111  S.  W.  Boom  Co.,  78  Minn.  398,  79  .Am.  St. 
270;  Jacksonville,  T.  &  K.  W.  R.  Rep.  395,  81  N.  W.  208,  citing  Har- 
Co.  v.  Lockwood,  33  Fla.  573,  594,  "ngton  v.  St.  Paul  &  S.  C.  R.  Co., 
15  So.  327;  Irvine  v.  Oelwein,  City      ^"^  ^^"°-  ^15;   Adams  v.  Hastings 

&  D.  R.  Co.,  18  Minn.  260;  Brakken 


of,   170  Iowa  653,   L.   R.  A.  1916E, 
990,  150  N.  W.  674;  Priebe  v.  Ames, 


V.  Minneapolis  &  St.  L..  R.  Co., 
29  Minn.  41,  11  N.  W.  124;  Byrne 
104  Minn.  419,  17  L.  R.  A.  (N.  S.)  ^  Minneapolis  &  St.  L.  R.  Co.,  38 
206,  116  N.  W.  829;  Van  Hoosier  ^inn.  212,  8  Am.  St.  Rep.  668,  33 
V.  Hannibal  &  St.  J.  R.  Co.,  70  Mo.  n.  W.  339;  Adams  v.  Chicago,  B.  & 
145;  Hayes  v.  St.  Louis  &  S.  F.  R.  N.  R.  Co.,  39  Minn.  286,  12  Am.  St. 
Co.,  177  Mo.  201,  162  S.  W.  266;  Rep.  644,  1  L.  R.  A.  493,  39  N.  W. 
Bird  v.  Hannibal  &  St.  J.  R.  Co.,  629;  Lamm  v.  Chicago,  St.  P.  M.  & 
30  Mo.  App.  365;  Wallace  v.  Kan-  O.  R.  Co.,  47  Minn.  71,  10  L.  R.  A. 
sas  City  &  S.  R.  Co.,  47  Mo.  App.  268,  47  N.  W.  455. 
491;   Beatrice  Gas  Co.  v.  Thomas,  3  Cases  fully  collected  and  well 

41  Neb.  662,  43  Am.  St.  Rep.  711,      analyzed  in  notes  17  L.  R.  A.  (N.  S.) 
59   N.  W.   925;    Perry   v.    Chicago,      206;   20  L.  R.  A.  (N.  S.)   886,  894; 
R.  I.  &  G.  R.  Co.  (Tex.  Civ.  App.),       L.  R.  A.  1916E,  997-1074. 
162  S.  W.  1185;  Gulf,  C.  &  S.  F.  R.  1  Cole  v.  Hines,  81  Md.  476,  32 

Co.   v.   Moseley,   88   C.   C.  A.   236,      L.  R.  A.  455,  32  Atl.  196.   See,  ante, 
20  L.  R.  A  (N.  S.)  885,  161  Fed.  72.      §  542,  footnotes  14-16,  §  549. 

741 


§  553 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  II, 


where  there  are  coexistent  antagonistic  remedies  he  must 
select  the  remedy  which  he  will  pursue. ^  Thus,  a  party 
can  not  be  permitted  to  treat  a  contract  as  rescinded,  sue 
for  the  amount  paid  to  the  other  party,  and  at  the  same 
time  rely  upon  the  contract  as  existing;^  a  mortgagee 
may  not  treat  a  mortgage  as  due  because  of  default  in 
payment  of  instalhnent  or  interest,  and  when  the  mort- 
gagor has  raised  the  money  to  make  payment,  enforce 
the  provision  in  the  mortgage  for  the  pajTnent  of  a  bonus 
in  case  the  amount  of  the  mortgage  is  accepted  after  it 
becomes  due.^  But  where  property  is  conveyed  in  con- 
sideration of  support,  an  action  to  enforce  benefits  under 
the  contract  does  not  preclude,  on  the  theory  of  an  elec- 
tion of  remedies,  an  action  to  rescind  the  contract  for 
future  defaults.^  Where  a  contract  has  been  partly  per- 
formed and  then  rightfully  terminated,  the  proper  rem- 
edy is  an  action  for  damages,  and  not  an  action  upon  a 
quantum  meruit;"  although  it  has  been  held  that  an  action 
upon  an  express  contract,  which  is  dismissed  for  failure 
to  prove  a  compliance  with  the  terms  of  such  contract, 
does  not  preclude  a  subsequent  action  upon  a  quantum 
meruit."  In  the  case  of  a  contract  with  a  carrier  for  the 
transportation  of  property,  on  breach  of  the  contract, 
the  party  may  elect  (1)  to  sue  for  damages  for  failure 
of  the  carrier  to  perform  a  public  duty,  or  (2)  may  waive 
the  tort  and  sue  for  breach  of  contract.^  An  election  of 
the  remedy  to  be  pursued  must  be  such  as  to  bind  the 
party,  under  the  rules  above  laid  down.'*    Thus,  bringing 


2  See,  ante,  §§  538,  541. 

3  Timmerman  v.  Stanley,  123  Ga. 
850,  1  L.  R.  A.  (N.  S.)  379,  51  S.  E. 
760. 

4  Kilpatrick  v.  Germania  Life 
Ins.  Co.,  183  N.  Y.  163,  111  Am.  St. 
Rep.  722,  2  L.  R.  A.  (N.  S.)  574, 
75  N.  E.  1124,  reversing  95  App. 
Div.  287,  88  N.  Y.  Supp.  628. 

sGaU  V.  Gall,  126  Wis.  390,  5 
L.  R.  A.  (N.  S.)  603,  105  N.  W.  953. 


6  Hildebrand  v.  American  Fine 
Art  Co.,  109  Wis.  171,  53  L.  R.  A. 
826,  85  N.  W.  268. 

T  Water,  Light  &  Gas  Co.  v. 
Huchinson,  City  of,  90  C.  C.  A. 
547,  19  L.  R.  A.  (N.  S.)  219,  160 
Fed.   41. 

s  Sevier  v.  Mitchell,  7  Ore.  483, 
142  Pac.  780. 

■••  See,   ante,   §§  542,   544-546. 


742 


1  I,1IP 

ch.  IV.J  ■     CONDITIONAL  SALE — ELECTION.  §  554 

a  replevin  suit  and  then  discontinuing  it  before  judg- 
ment, without  obtaining  any  benefit,  has  been  said  not  to 
estop  plaintiff  from  claiming  the  purchase  price  out  of 
the  estate  of  the  purchaser  ;i'^  and  a  suit  to  set  aside  a 
sale  and  to  recover  back  the  property,  abandoned  and 
dismissed  before  trial,  lea\dng  the  grantee  in  undisturbed 
possession  and  enjoyment,  will  not  estop  plaintiff  to  en- 
force a  mortgage  given  as  consideration  for  the  convey- 
ance.^^ A  judgment  in  favor  of  a  plaintiff  on  a  contract 
being  reversed  on  the  ground  that  the  contract  could  not 
be  enforced  in  its  present  shape,  on  the  going  down  of 
the  mandate,  the  plaintiff  may  maintain  an  action  for  tlie 
reformation  of  the  contract.^^ 

§  554. Conditional  sale.     On  a  contract  of 

conditional  sale,  the  title  to  the  property  remaining  in 
the  seller  until  the  purchase  price  is  fully  paid,  upon 
default  in  payment,  the  seller  may  (1)  retake  possession 
of  the  property,  or  (2)  affirm  the  contract  and  enforce 
payment  of  the  purchase  price,  or  any  portion  thereof 
remaining  unpaid ;  but  he  can  not  both  retake  possession 
of  the  property  and  enforce  payment,  as  he  is  not  per- 
mitted to  assume  antagonistic  positions.^  Bringing  an 
action  to  enforce  the  purchase  price  is  an  election  to 
ratify  the  contract,  which  estops  the  seller  to  reclaim 
possession  of  the  property  ;2  and  so,  also,  is  an  effort  on 

10  Bolton   Mines   Co.    v.    Stokes,  Mo.   App.    .307;    Albright  v.    Mere- 

82  Md.  50,  31   L.   R.  A.  789,  3  Atl.  dith,  58  Ohio  St.  194,  202,  50  N.  E. 

491.  719;  Francis  v.  Bohurt,  76  Ore.  1. 

iiTuttle  V.  Burgett,  53  Ohio  St.  L.  R.  A.  1916A,  922,  143  Pac.  920, 

498,  53  Am.  St.  Rep.  649,  30  L.  R.  A.  147  Pac.  755;   Seanor  v.  McLaugh- 

214,  42  N.   E.  427.  lin,   165   Pa.    St.    150,   32    L.    R.    A. 

12  Capital  City  Bank  v.  Hilson,  467,  30  Atl.  717. 

64  Fla.  206,  Ann  Cas.  1914B,  1211,  See,  also,  ante,   §542,  footnotes 

60  So.  189.  14-16;    §  549. 

1  Cole  V.   Hines,   81   Md.   476,   32  As  to  conditional  sales  and  the 

L.    R.   A.   455,   32  Atl.    196;    Cable  rights    and    liabilities    of    parties 

Co.   V.   Wasegizig,    130    Mich.   387,  thereunder,  see  notes  32  L.  R.  A. 

391,  90  N.  W.  24;    Laclede  Power  455-472;   L.  R.  A.  191 6A,  925. 

Co.    V.    Ennis    Stationary    Co.,    79  2  Butler  v.  Dodson,  78  Ark.  569, 

743 


§  555  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

the  part  of  tlie  seller  to  establish  a  lien  on  a  building  into 
the  construction  of  which  part  of  lumber  sold  on  a  con 
ditional  sale  entered.^  Where  the  seller  receives  notes 
for  the  purchase-price,  and  the  contract  provides  that  a 
suit  on  any  of  the  notes  shall  not  waive  the  seller 's  right 
to  retake  the  property,  after  retaking  the  property  the 
seller  can  not  maintain  a  suit  on  the  notes  ;^  but  where 
the  contract  so  provides  the  conditional  seller  may,  on 
default  in  payments  of  the  purchase-price,  seize  the  prop- 
erty and  sell  it,  applying  the  proceeds  on  the  purchase- 
price,  and  then  sue  for  any  balance  left  unpaid.^ 

§  555.    Contract  and  fraud.     Fraus  et  jus  nun- 

quam  cohabitant — fraud  and  justice  never  dwell  to- 
gether,^ and  it  is  a  general  principle  of  law  that  fraud 
vitiates  everything  into  wiiich  it  enters.  Hence  an  action 
brought,  without  knowledge  of  fraud  and  deceit  entering 
into  a  contract  on  the  part  of  a  purchaser,  to  enforce  a 
contract  procured  by  fraud,  is  no  bar  to  a  subsequent 
action  for  the  alleged  fraud,  the  remedies  being  concur- 
rent and  consistent,  both  proceeding  upon  an  affirmance 
of  the  contract.^  Thus,  the  securing  of  an  uncollectible 
judgment  in  an  action  on  the  contract  to  recover  the 
purchase-price  of  the  property  procured  by  fraud  and 

94  S.  W.  703;  Purdy  v.  Dunn  Ma-  Falls   Adjustment   Co.    v.   Aikens, 

chinery  Co.,  142  Ga.  308,  82  S.  E.  32  S.  D.  154,  142  N.  W.  651. 

888;     North    Robinson    Dean    Co.  See,    also,    authorities    in    note 

V.  Strong,  25  Idaho  721,  139  Pac.  L.  R.  A.  1916A,  925. 

847;  Smith  v.  Barber,  153  Ind.  322,  3  Hickman  v.  Richburg,  122  Ala. 

53  N.  E.  1014;  Frisch  v.  Wells,  200  638,  26  So.  136. 

Mass.  429,  23  L.  R.  A.  (N.  S.)  144,  4  Perkins  v.  Grabben,  116  Mich. 

86    N.   E.    775;    Alden   v.    Dyer   &  172,    72    Am.    St.    Rep.    512,    39 

Bro.,  W.  J.,  92  Minn.  134,  99  N.  W.  L,  R.  A.  815,  74  N.  W.  469;  Seanor 

784;    Chase    v.    Kelly,    125    Minn.  v.  McLaughlin,  165  Pa.  St.  150,  32 

317,  L.  R.  A.  1916A,  912,  14  N.  W.  L.   R.  A.  467,  30  Atl.   717. 

1113;     Mathews    Piano    Co.    v.  » Von   den   Bosch   v.    Bouwman, 

Markle,    86   Neb.    123,    124    N.   W.  138   Mich.    624,   110   Am.   St    Rep. 

1129;    Orcutt    v.    Rickenbrodt,    42  336,   101  N.  W.  832. 

App.   Div.    (N.   Y.)    238,   59    N.   Y.  i  Wingate's  Maxims  680. 

Supp.  1008;  Francis  v.  Bahast,  76  See,  also,  discussion,  post,  §  556. 

Ore.  1,  L.  R.  A.  1916A,  922;  Sioux  2  Union    Cent.    Life   Ins.    Co.    v. 

744 


ell.  IV.]  CONTRACT  AND  FRAUD — ELECTION.  §  555 

deceit,  is  no  bar  to  an  action  for  the  fraud  f  the  recovery 
of  a  judgment  for  the  full  amount  due  on  a  note  and 
mortgage,  and  the  issuance  of  an  execution  which  is 
returned  nulla  bona,  does  not  prevent  an  action  for  fraud 
against  a  third  party  who  aided  in  procuring  the  fraudu- 
lent loan;^  and  where  a  person  is  induced  to  indorse  a 
promissory  note  for  another  by  false  and  fraudulent 
representations  respecting  the  latter 's  specific  articles  of 
property  free  and  clear  of  all  encumbrance  or  lien,  the 
retention  of  some  security  to  reimburse  him  for  the  in- 
dorsed note  he  has  been  compelled  to  pay,  does  not  pre- 
clude the  maintenance  of  an  action  for  the  fraud.^  Even 
the  filing  of  a  complaint  asking  the  rescission  of  a  con- 
tract for  fraud  is  not  a  conclusive  election  of  remedies  f 
nor  does  the  proving  of  a  claim  for  the  purchase-price 
against  a  bankrupt's  estate,  and  accepting  dividends 
thereon  in  composition  of  it,  bar  an  action  for  fraud  and 
deceit  in  procuring  by  false  representations  the  property 
on  which  the  claim  is  based."^  Likewise  an  attachment 
and  bill  in  equity,^ — but  not  so  a  replevin  of  the  prop- 
erty,° — on  the  ground  of  fraud  in  procuring  credit  on  a 

Scheidler,  130  Ind.  214,  15  L.  R,  A.  v.  Owings,  140  N.  C.  503,  8  L.  R.  A. 

89,    29    N.    E.    1071;    B  o  w  e  n    v.  (N.  S.)    582,  53  S.  E.  345. 

Mandeville,  95  N.  Y.  237,  affirming  See,    also,   authority   next   foot- 

29  Hun  42;  Equitable  Cooperative  ^°*^®- 


Foundry  Co.  v.  Hersee,  103  N.  Y. 
25,  9  N.  E.  487,  affirming  33  Hun 
169;    Hays    v.    Midas,    104    N.    Y. 


4  Union  Cent.  Life  Ins.  Co.  v. 
Scheidler.  130  Ind.  214,  15  L.  R.  A. 
89,  29  N.  E.  1071. 


See  authority  in  preceding  foot- 

602,    11    N.    E.    141,    affirming    39  ^^^g 

Hun  460;    Wanzer  v.  De  Baun,   1  5  Chiids   v.   Merrill,   63  Vt.   403, 

N.   Y.    Code   Rep.  N.    S.   280,   1  14  L.  R.  A.  204,  22  Atl.  626. 

E.  D.  Smith  261;  Morgan  v.  Skid-  c  Gaboon  v.  Fisher,  146  Ind.  588. 

more,  55  Barb.  (N.  Y.)  263;  Whit-  36  L.  R.  A.  195,  45  N.  E.  1071. 

tier  V.  Collins,  15  R.  I.  90,  2  Am.  7  Talcott  v.  Friend,  103  C.  C.  A. 

St.  Rep.  879,  23  Atl.  47;   Chiids  v.  80,   43    L.    R.   A.    (N.   S.)    649,    179 

Merrill,  63  Vt.  463,  14  L.  R.  A.  2C4,  Fed.    676. 

22  Atl.  626.  s  Crossman  v.  Universal  Rubber 

See,    also,    footnotes    7-10,    this  Co.,  127  N.  Y.  34,  13  L.   R.  A.  91, 

section.  27  N.  E.  400. 

s  Standard  Sewing  Machine  Co.  0  Rochester  Distilling  Co.  v. 

745 


§556.  CODE   PLEADING   AND   PRACTICE.  [Pt.  II, 

purchase  by  an  insolvent  corporation  or  a  bankrupt  party, 
will  not  defeat  an  action  on  subsequently-maturing  pur- 
chase-money notes,  because  the  remedies  are  concurrent 
and  consistent,^"  both  being  in  affirmance  of  the  contract 
and  for  the  recovery  of  the  purchase-price  of  the  prop- 
erty.^ ^ 

Ani/  subsequent  action  attacking  conclusiveness  of  con- 
tract, after  an  action  in  affirmance  thereof  and  seeking  to 
enforce  it,  the  rule  will  be  otherwise,^^  where  the  first 
suit  was  brought  with  full  knowledge  of  the  alleged  fraud 
and  deceit,^^  or  where  the  plaintiff  proceeded  to  judgment 
in  the  action  to  enforce  the  contract  after  full  knowledge 
of  the  fraud  and  deceit  in  procuring  the  same.^^  On  the 
other  hand,  under  the  same  principle  of  estoppel  by  elec- 
tion of  remedies,  an  action  to  recover  the  property  on 
the  ground  that  the  contract,  and  the  possession,  was 
procured  by  fraud  and  deceit,  will  bar  a  subsequent  action 
upon  the  contract  of  sale  to  recover  the  purchase-price.^^ 

§  556.    Contract  and  tort.     The  conflicting  and 

inconsistent  characters  of  the  remedies  by  an  action  ex 

Devendorf,  72  Hun  (N.  Y.)  428,  25  Collins,  15  R.  I.  90,  2  Am.  St.  Rep. 

N.  Y.   Supp.   200.  879,  23  Atl.  47.  ' 

See  footnote  15,  this  section.  12  Horner  v.  Boyden,  27  111.  App. 

lOWalden   Nat.   Bank  v.   Birch,  573;    Lloyd   v.   Brewster,   4   Paige 

130  N.  Y.  221,  14  L.   R.  A.  211,  29  Ch.    (N.  Y.)    537,  27  Am.   Dec.  88. 

N.  E.  127.  See,  also,  supra,  §  553,  footnote 

As    to    concurrent    and    noncon-  1. 

flicting  remedies,  see,  ante,  §539,  13  Conrow   v.    Little,   115   N.   Y. 

540.  387,  5  L.  R.  A.  693,  22  N.  E.  346; 

iiBowen  v.  Mandeville,  95  N.  Y.  Simon  v.  Goodyear  Metallic  Rub- 

237,    affirming    29    Hun    42;    Heil-  ber  Shoe  Co.,  44  C.  C.  A.  612,  52 

brom  V.  Herzog,  165  N.  Y.  98,  103,  L.   R.  A.  745,  105  Fed.   573. 

53   N.   E.    759,   reversing   33   App.  i4  Sanger  v.  Wood,  3  John.  Ch. 

Div.    317,    53    N.    Y.    Supp.    841;  (N.   Y.)    416. 

Wanzer  v.  De  Baun,  1  N.  Y.  Code  is  Moller  v.  Tuska,  87  N.  Y.  160. 

Rep.  N.  S.  280,  1  E.  D.  Smith  261;  See  footnote  9,  this  section. 

Pratt,   Hurst  &   Co.  v.   Tailer,   53  As   to    effect   of   election    of 

Misc.   (N.  Y.)   82,  103  N.  Y.  Supp.  remedies    in    case    of    fraudulent 

1094;    Morgan  v.   Skidmore,   55  purchase,    see    note    44    L.    R.    A. 

Barb.     (N.    Y.)    263;    Whittier    v.  (N.   S.)    25. 

14.G 


fh.  IV.]  COXTRACT  AND  TORT — ELECTION.  §  556 

contractu  and  an  action  ex  delicto,  have  been  already 
discussed  at  length.^  Where  tlie  two  remedies  are  co- 
existent on  the  same  state  of  facts,  there  must  be  an  elec- 
tion of  remedies.-  An  action  for  damages  for  injuries 
resulting  from  the  breach  of  a  contract,  in  some  cases, 
may  be  redressed  either  by  an  action  ex  contractu  or  an 
action  ex  delicto;^  and  we  have  already  seen*  that  an 
action  against  a  common  carrier,  on  breach  of  a  contract 
for  the  transportation  of  either  persons  or  stock  or  other 
property,  may  be  either  (1)  ex  contractu  or  (2)  ex  delicto, 
for  failure  to  perform  a  public  duty,^  but  where  the 
action  is  ex  contractu  no  damages  can  be  recovered  other 
than  those  growing  out  of  the  breach  of  the  contract, — 
e.  g.,  damages  for  mental  suffering  and  anguish  for  fail- 
ure to  transport  a  corpse  can  not  be  recovered  ;"  but  where 
the  breach  of  the  contract  of  the  carrier  involves  a  tort, 
the  action  being  ex  delicto,  damages  other  than  those 
incident  to  the  breach  of  the  contract  may  be  recovered." 
In  those  cases  in  which  money  has  been  received  through 
fraud  and  deceit,  or  for  a  fraudulent  consideration,  the 
party  injured  may  elect  (1)  to  sue  the  offending  party 
for  fraud  and  deceit,*  (2)  may  waive  the  tort  and  pro- 

1  See,  ante,  §525.  Cal.  526,  79  Am.   Dec.  193;    Pltts- 
As  to  frauds,  see,  ante,  §  555.  burgh,   C.    C.   &    St.   L.   R.    Co.   v. 

2  See,  ante,  §  541.  Street,   26   Ind.   App.   224.   233,   59 
— Effect  of  election  between  con-  N.  E.  404;  Nelson  v.  Great  North- 
tract  and  tort.— See  notes  17  Am.  ern  R.  Co.,  28  Mont.  297,  72  Pac. 
Dec.  233;  4  L.  R.  A.  146;  50  L.  R.  A.  642. 

(N.  S.)  31.  6  Beaulieu  v.  Great  Northern  R. 

3  Sheldon  v.  Steamship  Uncle  Co..  103  Minn.  47,  19  L.  R.  A. 
Sam,  18  Cal.  526,  79  Am.  Dec.  193;  (N.  S.)  564,  114  N.  W.  353. 
Delmonte  v.  Southern  Pac.  Co.,  2  See,  also,  authorities  cited  in 
Cal.  App.  211,  215,  83  Pac.  271;  note  19  L.  R.  A.  (N.  S.)  564. 
Justis  V.  Atchison,  T.  &  S.  F.  R.  ^  Sheldon  v.  Steamship  Uncle 
Co.,  12  Cal.  App.  639,  641,  108  Pac.  Sam,  18  Cal.  526,  79  Am.  Dec.  193; 
329.  Rillinger  v.  Clyde  Steamship  Co.. 

4  See,  ante,   §553,  footnote  8.  158  Fed.   511,  519. 

r.  Louisville  &  N.  R.  Co.  v.  Hine,  s  Loaiza   v.    Superior   Court,    85 

121  Ala.  234,  237,  25  So.  857;  Shel-      Cal.    11,    20    Am.    St.    Rep.    197,    9 
don  V.  Steamship  Uncle  Sam.   18      L.  R.  A.  376,  24  Pac.  707. 

747 


§556 


CODE  PLEADING   AND   PRACTICE. 


[Ft.  II, 


ceed  as  for  the  breach  of  an  implied  contract,®  or  (3)  may 
rescind  the  contract  and  recover  the  money  paid  in  an 
action  in  assumpsit/^  an  action  in  the  nature  of  an  action 
for  money  had  and  received  being  the  proper  remedy  in 
such  a  case.^^    Personal  property  wrongfully  taken  with- 


9  Bayard  v.  Holmes,  33  N.  J.  L. 
(4  Vr.)  119,  6  Morr.  Min.  Reps. 
598. 

Suit  on  contract  not  necessary; 
action  to  recover  the  money  is  a 
proper  remedy. — Burton  v.  Driggs, 
S7  U.  S.  (20  Wall.)  125,  22  L.  Ed. 
299.  See  cases  cited  in  footnote 
11,  this  section. 

Action  to  recover  the  money  is 
not  based  upon  a  breach  of  con- 
tract. —  Minor  v.  Baldridge,  123 
Cal.  187,  55  Pac.  783. 

10  Id.;  Robinson  v.  Welty,  40 
W.  Va.  385,  395,  22  S.  E.  73. 

On  discovery  of  the  fraud  the 
contract  may  be  avoided,  although 
the  wrong-doer  can  not  be  put  in 
statu  quo,  but  so  far  as  this  can 
be  done  the  party  rescinding  is 
bound  to  do  it,  and  to  do  it  as 
soon  as  practicable  after  the  dis- 
covery of  the  fraud;  there  can  be 
no  rescission  so  long  as  he  retains 
anything  received  under  the  con- 
tract, which  he  might  have  re- 
turned, and  the  withholding  of 
which  might  be  injurious  to  the 
other  party. — Bayard  v.  Holmes, 
33  N.  J.  L.  (4  Vr.)  119,  6  iVlorr. 
Min.  Reps.  598.  See  Norton  v. 
Young,  3  Me.  30;  Gushing  v.  Wy- 
man,  33  Me.  589;  Sheppard  v. 
Temple,  3  N.  H.  455;  Evans  v. 
Gale,  21  N.  H.  240;  Cook  v.  Gil- 
man,  34  N.  H.  556;  Masson  v. 
Bovert,  1  Den.  (N.  Y.)  69,  43  Am. 
Dec.  651;  Baker  v.  Robbins,  2  Den. 
(N.  Y.)  136;  Moyer  v.  Shoemaker, 
5  Barb.    (N.  Y.)    319;    Wheaton  v. 

7 


Baker,  14  Barb.  (N.  Y.)  594; 
Campbell  v.  Fleming,  1  Ad.  &  E. 
40,  28  Eng.  C.  L.  44,  110  Eng. 
Repr.   1122. 

11  See,  among  other  cases: 
ALA. — Branch  Bank  v.  Parish,  20 
Ala.  433.  CAL.— Alvarez  v.  Bran- 
nan,  7  Cal.  504,  68  Am.  Dec.  274; 
Loaiza  v.  Superior  Court,  85  Cal. 
11,  20  Am.  St.  Rep.  197,  9  L.  R.  A. 
376,  24  Pac.  707;  Minor  v.  Bald- 
ridge, 123  Cal.  187,  55  Pac.  783. 
KY.— Ford  v.  Leatherer,  7  Ky.  (4 
Bibb)  512.  ME. —  Webster  v. 
Drinkwater,  5  Me.  319,  17  Am.  Dec. 
238.  MASS.— Bliss  v.  Thompson, 
4  Mass.  488.  M  I  C  H.— Ricks  v. 
Steel,  126  Mich.  408,  85  N.  W. 
1121;  Gobbins  v.  Ashley,  146  Mich. 
453,  109  N.  W.  841;  Macomber  v. 
Edson  Grape  Juice  Co.,  160  Mich. 
54,  125  N.  W.  26.  MISS.— O'Conley 
V.  Natchez,  City  of,  9  Miss.  (1 
Smed.  &  M.)  31,  40  Am.  Dec.  87. 
MO. — Magoffin  v.  Muldow,  12  Mo. 
512;  Fisher  v.  During,  53  Mo.  App. 
549;  Stout  v.  Caruthersville  Hard- 
ware Co.,  131  Mo.  App.  520,  110 
S.  W.  619;  Steele  v.  Brazier,  139 
Mo.  App.  319,  123  S.  W.  477.  NEB. 
—Martin  v.  Hutton,  90  Neb.  34,  36 
L.  R.  A.  (N.  S.)  602,  132  N.  W.  727. 
N.  H.  —  Lockwood  v.  Kelsea,  41 
N.  H.  185.  N.  J.— Bayard  v. 
Holmes,  33  N.  J.  L.  (4  Vr.)  119, 
6  Morr.  Min.  Reps.  598.  N.  Y.— 
Bridge  v.  Penniman,  105  N.  Y.  462, 
1  Sily.  Ct.  App.  444,  12  N.  E.  19; 
Sarasohn  v.  IMiles,  52  App.  Div. 
(N.  Y.)  628,  65  N.  Y.  Supp.  lOS; 
48 


ch.  IV.]  CONTRACT  AND  TORT — ELECTION.  §  55G 

out  consent  and  converted  to  the  wrongdoer's  owti  use, 
the  owner  may  sue  (1)  for  the  tort,  or  (2)  waive  the  tort 
and  sue  upon  an  implied  contract. ^^  An  action  ex  con- 
tractu against  one  who  has  converted  property,  based  on 
an  implied  contract  of  sale,  or  an  implied  agi'eement  to 
pay,  precludes  a  subsequent  action  in  tort  for  the  con- 
version of  the  same  property  against  other  persons  who 
participated  in  the  tortious  act;^^  and  a  surviving  part- 
ner prosecuting  to  a  decree  a  bill  for  an  accounting 
against  an  executor  of  a  deceased  partner,  for  property 
coming  into  the  hands  of  such  executor  as  such,  and  sold 
by  him,  thereby  ratifies  such  sale  by  the  executor,  and 
constitutes  an  election  of  remedies  barring  a  subsequent 
action  in  tort  against  the  executor.^^  Where  a  person 
enters  upon  the  land  of  another  without  consent  and 
wrongfully  cuts  timber,  the  owner  of  the  land  may  (1) 
maintain  an  action  for  damages  for  the  trespass,  or 
(2)  waive  the  tort  and  sue  to  recover  the  value  of  the 
timber  cut,  on  an  implied  contract  or  promise  to  pay;^^ 

affirmed,  169  N.  Y.  573,  61  N.  E.  No    conversion    by   t  h  e   wrong- 

1134;    Lambert  v.  Elmendorf,   124  doer  of  tbe   property   to  his  own 

App.  Div.    (N.  Y.)    758,  109   N.  Y.  use,   and    he    deriving   no    profit, 

Supp.    574.      OKLA. — Howe    v.  there  is  no  election  of  remedies. 

Martin,  23  Okla.  561,  138  Am.  St.  —See,  post,  §  557. 

Rep.  840,  102  Pac.  128.  PA.— Pear-  Property  wrongfully  taken  with- 

soU  V.  Chapin,  44  Pa.  St.  9.    VT. —  out  consent,  owner  may  maintain 

James    v.    Hodsden,    47    Vt.    127;  action  ex  contractu  against  party 

Johnson    v.    Gate,    77    Vt.    218,    59  to    whom    transferred    to   recover 

Atl.  830.     WIS. — Mann  v.  Stowell,  the  value  thereof,  even  though  the 

3   Pinn.   220.     FED. — D'Utricht  v.  taking  was  larceny. — Buchanan  v. 

Melchor,   1  U.   S.    (1  Dal.)    428,   1  McCIain,  110  Ga.  477,  480,  35  S.  E. 

L.   Ed.  208;    Burton  v.  Driggs,   87  665. 

U.  S.  (20  Wall.)  125,  22  L.  Ed.  299;  13  Terry   v.    Munger,    121    N.   Y. 

Wilson    V.    United    States    Cattle-  161,  18  Am.  St.  Rep.  303,  8  L.  R.  A. 

Ranch  Co.,  73  Fed.  994,  20  C.  C.  A.  216,  24  N.  E.  272,  affirming  49  Hun 

244,  36  U.  S.  App.  634.  560,  2  N.  Y.  Supp.  348. 

12  Haynie  v.  Sites,  56  Colo.  115,  i*  Bradley  v.  Brigham,  149  Mass. 

138  Pac.  42;   Martin  v.  McCarthy,  141,  3  L.  R.  A.  507,  21  N.  E.  301. 

3  Colo.  App.  37,  32  Pac.  551;  Smith  in  Roberts  v.  Moss,  127  Ky.  657, 

V.  McCarthy,  33  Kan.  318,  18  Pac.  17   L.  R.  A.  (N.  S.)   2S0,  106  S.  W. 

201.  297. 

749 


§557 


CODE   PLEADING   AND   PRACTICE. 


[Ft.  II, 


but  after  an  action  for  the  value  of  the  timber  cut  tlio 
owner  can  not  maintain  an  action  for  the  trespass. ^^ 

§  557. Benefit    received    necessarv    to    an 

ELECTION.  To  entitle  the  plaintiff  to  waive  the  tort  and 
sue  upon  an  implied  contract,  the  defendant  must  have 
received  some  benefit  from  the  tortious  act  charged  ;^  for 
it  is  a  well-settled  principle  of  law  that  a  promise  is  not 
implied  against  or  without  the  consent  of  the  person  to 
be  charged,^  or  else  because  natural  justice  plainly  re- 
quires it,  except  in  consideration  of  some  benefit  received.^ 


16  Id.  See,  also,  notes  17  L.  R.  A. 
(N.  S.)  280;  50  L.  R.  A.  (N.  S.) 
31. 

1  ALA. — Crow  v.  Boyd,  17  Ala. 
51;  Pike  v.  Bright,  29  Ala.  332. 
IOWA — Moss  V.  Arnold,  43  Iowa 
187,  22  Am.  Rep.  239.  ME.— Web- 
ster V.  Drinkwater,  5  Me.  319,  17 
Am.  Dec.  238;  Balch  v.  Patten,  45 
Me.  41,  71  Am.  Dec.  526.  MASS.— 
Jones  V.  Hoar,  22  Mass.  (5  Pick.) 
289;  Berkshier  Glass  Co.  v.  Wol- 
cott,  84  Mass.  (2  Allen)  227,  79 
Am.  Dec.  781.  MICH. —Watson 
V.  Stever,  25  Mich.  386,  22  Am. 
Rep.  242.  N.  H. — Mann  v.  Locke, 
11  N.  H.  244,  246,  248;  Smith  v. 
Smith,  43  N.  H.  536.  N.  J.— Budd 
V.  Hiller,  27  N.  J.  L.  (3  Dutch.) 
43;  Randolph  Iron  Co.  v.  Elliott, 
34  N.  J.  L.  (4  Vr.)  184.  VT.— 
Stearns  v.  Dillingham,  22  Vt.  624, 
54   Am.   Dec.   88. 

See  notes  17  Am,  Dec.  242;  40 
Am.  Dec.  89. 

2  Webster  v.  Drinkwater,  5  Me. 
319,  17  Am.  Dec.  328;  Whiting  v. 
Sullivan,  7  Mass.  107. 

3  ALA.— Parke  v.  Bright,  29  Ala. 
322;  Fluler  v.  Duren,  36  Ala.  73,  76 
Am.  Dec.  318.  CONN.— Tucker  v. 
Jewett,  32  Conn.  563.  '  GA.— Bar- 
low V.  Stalworth.  27  Ga.  517.  ILL. 
— Morrison    v.    Rogers,    3    111.     (2 


Scam.)  317;  O'Reer  v.  Strong,  13 
111.  688.  KY.— Guthrie  v.  Wicliff, 
8  Ky.  (1  A.  K.  Marsh.)  83; 
Sanders  v.  Hamilton,  33  Ky.  (3 
Dana)  552.  ME.— W  e  b  s  t  e  r  v. 
Drinkwater,  5  Me.  319,  17  Am. 
Dec.  238;  Emerson  v.  McNamara, 
41  Me.  565.  MAS  S.— Jones  v. 
Hoar,  22  Mass.  (5  Pick.)  289; 
Berkshier  Glass  Co.  v.  Wolcott.  84 
Mass.  (2  Allen)  227,  79  Am.  Dec. 
781.  N.  H.— Mann  v.  Locke,  11 
N.  H.  244;  Smith  v.  Smith,  43  N.  H. 
536.  PA.— Will  et  v.  Willet,  3 
Watts  277;  Pearsoll  v.  Chapin,  44 
Pa.  St.  9.  VT. — Stearns  v.  Dilling- 
ham, 22  Vt.  624,  626,  54  Am.  Dec. 
88.  WIS.— Elliott  V.  Jackson,  3 
Wis.   649. 

Judge  Cooley  says:  "If  one  has 
taken  possession  of  property,  and 
sold  or  disposed  of  it,  and  re- 
ceived money  or  money's  worth 
therefor,  the  owner  is  not  com- 
pelled to  treat  him  as  a  wrong- 
doer, but  may  aflBrm  the  sale  as 
made  on  his  behalf,  and  demand 
in  this  form  of  action  the  benefit 
of  the  transaction.  But  we  can 
not  safely  say  that  the  law  will 
go  very  much  farther  than  this  in 
implying  a  promise,  where  the  cir- 
cumstances repel  all  implication 
of  a  promise  in  fact.     .     .     .  And  in 


750 


I 


Ch.  IV,]  CORPORATION — CO-TENANT.  §§558,559 

Thus,  where  one  wrongfully  and  negligently  injures  or 
destroys  the  property  of  another,  without  converting  it 
to  his  own  use,  or  in  some  manner  receiving  a  substantial 
benefit  through  the  tortious  act  charged,  the  owner 's  only 
remedy  is  an  action  ex  delicto  on  the  tort;^  and  where 
damage  is  done  to  growing  crops,  or  to  other  personal 
property,  by  trespassing  stock,  the  owner  of  such  stock 
not  participating  in  the  trespass  and  receiving  no  benefit 
therefrom,  the  injured  party  can  not  waive  the  tort  and 
sue  on  an  implied  contract  to  recover  the  damages  done 
by  the  trespassing  stock;  he  is  confined  to  his  action  on 
the  tort.^ 

§  558.    Corporation  without  franchise,  etc.     In 

the  case  of  a  corporation  operating  without  authority,  or 
without  a  franchise,  the  state  must  elect  to  proceed 
against  such  corporation  (1)  by  quo  warranto  to  vacate 
the  corporate  charter  for  violation  of  special  franchise, 
or  (2)  in  an  action  for  usurpation  of  a  franchise  not 
conferred.^ 

§  559.    Co-tenant  excluded  from  property.  In  the 

case  of  property  owned  in  common,  and  one  of  the  co- 
tenants  is  excluded  or  ousted  from  the  connnon  property 
by  another  or  others  of  his  co-tenants,^  the  ousted  co- 

the  case  of  the  taking  of  personal  Birmingham  Waterworks  Co.,  185 

property  it  is  generally  held  that  Ala.  388,  Ann.  Gas.  1916B,  1G6,  64 

a  sale  by  the  defendant  should  be  So.  23. 

shown."  —  Watson  v.  Steve,  25  See  note  Ann.   Gas.   191013,   179. 

Mich.  386,  22  Am.  Rep.  242.  i  Ouster  must  be  alleged  in  the 

■t  Reynolds    v.    Padgett,    94    Ga.  complaint  in  a  proper  manner. — 

347,  21  S.  E.  570;   Eads  v.  Pitkin,  See  Bell  v.   Hudson,   73   Cal.   285, 

3   G.   Greene    (Iowa)    77;    Kyle   v.  290,   2  Am.   St.    Rep.   791,   795,    14 

Chester,  42  Mont.  522,  37  L.  R.  A.  Pac.   791. 
(N.  S.)    230,  113  Pac.  749.  Ouster   muct    be   established    as 

5  Tightmeyer  v.  Mongol  d,  20  a  fact  by  the  finding  of  a  jury. — 

Kan.    90;    Watson   v.    Stever,    25  Carpentier  v.  Mcndenhall,  28  Cal. 

Mich.  386,  22  Am.  Rep.  242;   Page  484,   485,   487,   87   Am.    Dec.   135. 

V.  R)  bbitt,  21  N.  H.  389.  See   Packard   v.  Johnson,  57   Cal. 

1  State   ex    rel.   Weatherly   v.  183. 

751 


§5G0 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  II, 


tenant  may  elect  (1)  to  bring  proceedings  for  partition,^ 
but  a  partition  will  not  furnish  redress  for  the  disposses- 
sion, whether  total  or  only  partial,"  because  the  equity  suit 
of  partition  can  not  be  used  for  the  purpose  of  redress 
for  an  ouster,  or  for  other  legal  wrong  pre\dously  com- 
mitted;^ and  in  such  a  proceeding  no  account  can  be 
taken  of  damages,  but  of  mesne  profits  only;^  (2)  may 
bring  an  action  for  an  accounting  for  rents  and  profits  f 
or  (3)  may  maintain  an  action  for  damages  suffered  by 
reason  of  the  ouster,'^  not  being  limited  to  his  remedies  to 
partition  and  accounting.^ 


^560. 


Damage  to  eeal  pkoperty.*   In  the  case  of 


damages  to  real  property  by  the  destruction  of  growing- 
trees,  detaching  and  removing  buildings,  digging  and 
hauling  away  gravel,  drawing  off  water  impounded  in  a 
mill  pond  or  other  enclosure,^  and  the  like,  the  party  in- 


2  Adam  v.  Briggs  Iron  Co.,  61 
Mass.    (7  Cush.)    368. 

In  lode  mines  it  is  impossible  to 
effect  a  fair  partition,  because  the 
metallic  substances  occurring  in 
veins  are  not  distributed  uni- 
formly, either  as  to  quantity  or 
quality,  being  found  in  "shoots" 
or  "vuggs,"  "kidneys"  and  other 
irregular  bodies. — Paul  v.  Cragnas, 
25  Nev.  293,  47  L.  R.  A.  540,  59 
Pac.  857,  60  Pac.  983. 

3  Carpentier  v.  Webster,  27  Cal. 
524,  550. 

4  Carpentier  v.  Webster,  27  Cal. 
524. 

5  Id.;  Paul  V.  Cragnas,  25  Nev. 
2't3,  47  L.  R.  A.  540,  59  Pac.  857, 
60  Pac.  983. 

See  1  Story  Eq.  Jur.,  §  466. 

c.  Gage  V.  Gage,  66  N.  H.  282,  28 
L.  R.  A.  829,  29  Atl.  543;  Ela  v. 
Ela,  70  N.  H.  163,  164,  47  Atl.  414; 
Morrill  v.  Weeks,  70  N.  H.  178, 
181,  46  Atl.  32;   Roberts  v.   Clare 

7 


mont  R.  &  Lighting  Co.,  74  N.  H. 
217,  220,  124  Am.  St.  Rep.  962,  66 
Atl.   485. 

See  full  collection  of  cases,  28 
L.  R.  A.  829-862,  and  especially 
authorities  on  pp.  832  et  seq. 

7  Carpentier  v.  Webster,  27  Cal. 
524;  Carpentier  v.  Gardiner,  29 
Cal.  160,  162,  163;  Carpentier  v. 
Mitchell,  29  Cal.  330,  333;  Paul  v. 
Cragnas,  25  Xev.  293,  47  L.  R.  A. 
540,  59  Pac.  857.  60  Pac.  983. 

8  Paul  V.  Cragnas,  25  Nev.  293, 
47  L.  R.  A.  540,  59  Pac.  857,  60  Pac. 
983. 

1  As  to  trespass  upon  real  prop- 
erty, see,  ante,  §  556,  footnotes  15 
and  16;    §  557,  footnote  5. 

2  Union  Water  Power  Co.  v. 
Lewiston,  Inhabitants  of,  101  Me. 
564,  570,  65  Atl.  67;  Lancaster  & 
J.  Elec.  Light  Co.  v.  Jones,  75  N.  H. 
182,  71  Atl.  871;  Green  Bay  &  M. 
Canal  Co.  v.  Kaukauna  Water 
Power  Co..  112  Wis.  323,  62  L.  R.  A. 
579,  87   N.  W.   864. 

52 


ell.  IV.]  DAMAGES  TO  REAL  PROPERTY.  §  5G0 

jured  may  elect  to  sue  to  recover  (1)  the  value  of  the 
thing  destroyed  or  taken,  or  (2)  damages  to  the  freehold 
or  to  plaintiff's  interest  therein.^^  The  rule  as  to  the 
measure  of  damages  in  the  two  actions  or  remedies  is  not 
the  same.  If  the  action  is  to  recover  the  value  of  the 
thing  destroyed,  or  injured,  or  removed,  the  measure  of 
damages  is  the  value  thereof,  and  that  value  will  be 
ascertained  as  in  the  case  of  any  personal  property  sim- 
ilarly treated  and  injured  or  destroyed.^  If  the  action 
is  to  recover  for  the  injury  to  the  freehold,  or  to  the 
plaintiff's  interest  therein,  the  measure  of  damages  is 
the  difference  in  the  value  of  the  freehold  or  land,  or  of 
plaintiff's  interest  therein,  before  and  after  the  act  com- 
plained of.5  In  the  case  of  drawing  off  water  impounded 
by  a  dam  in  a  pond  or  elsewhere,  the  measure  of  dam- 
ages is  the  value  of  the  power  or  water  actually  taken, 
with  interest  f  and  the  fact  that  the  owTier  of  the  water 
had  no  facilities  for  using  the  same,  or  of  using  the  power 
that  it  created,  so  that  it  would  otherwise  have  gone  to 
waste,  can  not  be  considered  in  mitigation  of  damages." 

3  Dwight  V.  Elmira,  C.  &  N.  R.  N.  W.  R.  Co.  v.  Kendall,  108 
Co.,  132  N.  Y.  199,  28  Am.  St.  Rep.      C.  C.  A.  251,  186  Fed.  141. 

563,  15  L.  R.  A.  612,  30  N.  E.  398;  As   to    measure   of   damages   for 
Bailey  v.  Chicago,  M.  &  St.  P.  R.  injury  to  or   destruction   of  prop- 
Co.,  3  N.  D.  531,  19   L.  R.  A.  653,  erty,  see  note  19   L.   R.  A.  653. 
54  N.   W.   596.  0  Dwight  v.  Elraira,  C.  &  N.  R. 

4  L  o  u  i  s  V  i  11  e  &  N.  R.  Co.  v.  Co.,  132  N.  Y.  199,  28  Am.  St.  Rep. 
Beeler,  126  Ky.  335,  128  Am.  St.  563,  15  L.  R.  A.  612,  30  N.  E.  398; 
Rep.  291,  15  Ann.  Cas.  913,  103  Bailey  v.  Chicago,  M.  &  St.  P.  R. 
S.  W.  300;  Fremont,  E.  &  M.  V.  R,  Co.,  3  S.  D.  531,  19  L.  R,  A.  653. 
Co.  V.  Crum,  30  Neb.  70,  46  N.  W.  54  N.  W.  596. 

217;  Dwight  v.  Elmira,  C.  &  N.  R.  6  Lancaster  &  J.  Elec.  Light  Co. 

Co.,  132  N.  Y.  199,  28  Am.  Si.  Rep.  v.  Jones,  75  N.  H.  182,  71  Atl.  871; 

563,  15  L.  R  A..  612,  30  N.  E.  398;  Green    Bay    &    M.    Canal    Co.    v. 

Whitbeck  v.   New   York   Cent.   R.  Kaukauna  Water  Power  Co.,   112 

Co.,  36  Barb.   (N.  Y.)    644;    White  W^is.  323,  62  L.  R.  A.  579,  87  N.  W. 

V.  Chicago,  M.  &  St.  P.  R.  Co.,  1  864. 

S.  D,  326,  9  L.  R.  A.  824,  47  N.  W.  7  Green  Bay  &  M.  Canal  Co.  v. 

146;    Bailey  v.  Chicago,  M.   &   St.  Kaukauna  Water   Power  Co.,   112 

P.  R.  Co.,  3  S.  D.  531,  19  L.  R.  A.  Wis.  323,  62  L.  R.  A.  579,  87  N.  W. 

653,    54    N.    W.    596;     Chicago    &  864. 
I  Code  PI.  and  Pr. — 48                          753 


§561 


CODE  PLEADING   AND  PRACTICE, 


[Pt.  IT, 


§  561.    Death  from  negligent  or  wrongful  act — 

Common-law  rule.  At  the  common  law,  in  a  civil  court, 
the  death  of  a  human  being  could  not  be  complained  of 
as  an  injury.^  The  right  of  action  by  or  for  the  benefit 
of  parents,  children  or  heirs  of  a  person  who  has  met 
his  death  by  or  through  a  negligent  act,  unlawful  vio- 
lence, or  a  wrongful  act  of  another,  for  damages  to  them 
by  such  act  and  consequent  death,  exists  solely  by  virtue 
of  the  statute  at  the  place  where  the  act  complained  of 
occurred,  and  the  injury  was  inflicted.  An  action  of  this 
kind  being  transitory  in  its  nature,^  the  lex  loci  and  not 
the  lex  fori  governs  in  the  trial  of  the  cause. ^  Under  the 
doctrine  of  the  maxim  actio  personalis  moritus  cum  per- 
sona— a  personal  action  dies  with  the  person,  an  action 
for  damages  for  a  wrongful  death  abates  with  the  death 


1  Lord  Ellenborough  in  Baker  v. 
Bolton,  1  Campb.  493,  10  Rev.  Rep. 
734.  See  Bond  v.  United  Railroads, 
159  Cal.  270,  113  Pac.  366;  Clark 
V.  Goodwin,  170  Cal.  527,  L.  R.  A. 
1916A,  1142,  10  N.  C.  C.  A.  1020, 
150  Pac.  357;  Eureka,  City  of,  v, 
Murrified,  53  Kan.  794,  37  Pac, 
113;  Mascitelli  v.  Union  Carbide 
Co.,  151  Mich.  693,  115  N.  W.  721; 
Dillon  V.  Great  Northern  R.  Co.,  38 
Mont.  485,  100  Pac.  960;  Harsh- 
man  V.  Northern  Pac.  R.  Co.,  14 
N.  D.  69,  103  N.  W.  412;  Gulf, 
C.  &  S.  F.  R.  Co.  V.  Beall,  91  Tex. 
310,  66  Am.  St.  Rep.  892,  41  L.  R.  A. 
807,  42  S.  W.  1054;  Johnson  v.  Eau 
Claire,  City  of,  149  Wis.  194,  135 
N.  W.  481;  Hambly  v.  Trott,  1 
Cowp.  371,  98  Eng.  Repr.  1136,  2 
Eng.  Rul.  Gas.  1;  Osborn  v.  Gillett, 
L.  R.  8  Ex.  88,  42  L.  J.  Ex.  53. 

See  notes  41  L,  R.  A.  807;  2 
Eng.  Rul.  Gas.  14-18. 

2  See,  ante,  §§322,  339. 

3  COLO.— Denver  &  R.'  G.  R.  Co. 
V.  Warring,  37  Colo.  122,  86  Pac. 
305.     IOWA — Coe's  Estate,  In  re. 


130  Iowa  307,  114  Am.  St.  Rep.  416, 
4  L,  R.  A.  (N.  S.)  814,  106  N.  W. 
743.  KAN.—  Hartley  v.  Hartley, 
71  Kan.  691,  114  Am.  St.  Rep.  519, 
81  Pac.  505.  KY.— McDonald  v. 
McDonald's  Admr.,  96  Ky.  209,  49 
Am.  St.  Rep.  289,  28  S.  W.  482; 
Louisville  &  N.  R.  Co.  v.  Whit- 
low's Admr.,  105  Ky.  1,  114  Ky. 
470,  41  L.  R.  A.  614,  43  S.  W.  711. 
MINN.  —  Negaubauer  v.  Great 
Northern  R.  Co.,  92  Minn.  184,  lOi 
Am.  St.  Rep.  674,  97  N.  W.  620. 
OHIO— Ott  V.  Lake  Shore  & 
M.  S.  R.  Co.,  18  Ohio  Cir.  Ct.  Rep. 
395,  10  Ohio  Cir.  Dec.  85.  UTAH 
— T  h  o  r  p  e  v.  Union  Pac.  Coal 
Co.,  24  Utah  475,  68  Pac.  145. 
F  E  D. — Davidow  v.  Pennsylvania 
R.  Co.,  85  Fed.  943;  Van  Doren  v. 
Pennsylvania  R.  Co.,  35  C.  C.  A. 
282,  93  Fed.  260;  Erickson  v.  Pa- 
cific Coast  Steamship  Co.,  9G  Fed. 
8  0;  International  N  a  v.  Co.  v. 
Lindstrom,  60  C.  C.  A.  649,  123 
Fed.  475,  reversing  117  Fed.  170; 
Leman  v.  Baltimore  &  O.  R.  Co., 
128  Fed.  191. 
754 


ch.  IV.] 


NEGLIGENT  ACT,  ETC.,  CAUSING  DEATH. 


§561 


of  the  person  injured,^  Thus,  at  common  law,  a  husband 
could  not  recover  damages  for  the  death  of  his  wife 
through  the  negligent  or  wrongful  act  of  another,'"'  or  a 
parent  for  the  death  of  his  child  through  a  like  means,^' 
and  the  like.  But  a  husband  had,  and  still  has,  a  right 
of  action  for  damages  (1)  for  the  loss  of  consortium" — 
the  consolation  and  companionship  and  society  of  his 
wife — per  quod  consortium  amisit — whereby  he  lost  tlie 
company — ran  the  old  declaration  at  common  law,  being 
descriptive  of  the  special  damages  he  had  sustained  and 
for  which  he  sought  to  recover;-  and  (2)  for  her  services.'' 
Likewise  a  parent  had  at  common  law,  and  still  has,  inde- 
pendent of  any  statute,  a  right  of  action  (1)  for  loss  of 
services  of  a  minor  child,  resulting  from  the  death  of 
such  child  through  the  negligent  or  wrongful  act  of  an- 
other, and  damages  are  recoverable  from  the  time  of  the 
injury  until  the  child  would  have  arrived  at  the  age  of 
tw^enty-one — or  other  age  at  which  emancipated  by  the 
law,^^ — but  in  all  such  cases  the  recovery  will  be  less  the 


4  Broom's  Maxims  903-916; 
Zabriskie  v.  Smith,  13  N.  Y.  322, 
64  Am.  Dec.  451;  Harrisburg,  The, 
119  U.  S.  199,  30  L.  Ed.  358,  7  Sup. 
Ct.  Rep.  140;  Baker  v.  Bolton,  1 
Cow  p.  493,  10  Rev.  Rep.  734; 
Hambly  v.  Trott,  1  Cowp.  371,  98 
Eng.  Repr.  1136,  2  Eng.  Rul.  Gas. 
1. 

See  notes  (English  cases  and 
American  cases),  2  Eng.  Rul.  Cas. 
7-18;  1  Extra  Annotation  E.  R.  C, 
vol.  1,  p.  148. 

5  Higgins  V.  Butcher,  Yelv.  89, 
80  Eng.  Repr.  61. 

«  Edgar  v.  Costello,  14  S.  C.  20, 
37  Am.  Rep.  714;  Gulf,  G.  & 
S.  F.  R.  Co.  V.  Beall,  91  Tex.  310, 
66  Am.  St.  Rep.  892,  41  L.  R.  A. 
807,  42  S.  W.  1054;  Stevens  v. 
Ritter  Lumber  Co.,  W.  M.,  108  Va. 
575,  18  L.  R.  A.  (N.  S.)  316,  62 
S.  E.  351. 


See  notes  37  Am.  Rep.  716;  41 
L.   R.  A.  807. 

7  Eden  v.  Lexington  &  F.  R.  Co., 
53  Ky.  (14  B.  Mon.)  204;  Kelly 
V.  New  York,  N.  H.  &  H.  R.  Co., 
168  Mass.  308,  60  Am.  St.  Rep.  397, 
38   L.   R.  A.  631,  46  N.  E.  10G3. 

s  3  Bl.  Com.  140;  Guy  v.  Livesey, 
Cro.  Jac.  501,  538,  79  Eng.  Repr. 
428. 

9  Long  V.  Morrison,  14  Ind.  595, 
77  Am.  Dec.  72. 

10  Davis  V.  St.  Louis,  L  M.  & 
S.  R.  Co.,  53  Ark.  117,  7  L.  R.  A. 
283,  13  S.  W.  801;  Long  v.  Mor- 
rison, 14  Ind.  595,  77  Am.  Dec.  72; 
Mayhew  v.  Burns,  103  Ind.  328,  2 
N.  E.  793;  Louisville,  N.  A.  &  C.  R. 
Co.  V.  Goodyknootz,  119  Ind.  Ill, 
12  Am.  St.  Rep.  371,  21  N.  E.  472; 
Jackson  v.  Pittsburgh,  C.  C.  &  St. 
L.  R.  Co.,  140  Ind.  241,  49  Am.  St. 
Rep.  142,  39   N.  E.   663;    Eden   v. 


i'o'o 


§562 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  II, 


cost  of  maintenance;^^  and  also,  where  the  death  was  not 
instantaneous,^^  (2)  such  reasonable  expenses  for  medical 
attendance,  care  and  nursing  as  were  incurred  in  and 
during  the  sickness  resulting  from  the  injury  and  termi- 
nating in  the  death  of  the  child  ;^"  although  it  seems  that 
he  (3)  can  not  recover  for  the  expense  incurred  for  the 
funeral  and  burial  of  the  child. ^* 

<§  562. Under  statute:  Election.     In  many 

of  the  states  statutes  have  been  passed  under  which  the 
cause  of  action  which  a  person  injured  by  the  negligent 
or  wrongful  act  of  another  has  to  recover  damages  there- 
for, survives  his  death.  Under  such  statutes  damages 
for  the  pain  and  suffering  of  the  deceased  may  be  recov- 
ered in  a  suit  brought  after  his  death;  and,  it  seems  that, 
under  such  statutes,  the  personal  representative  of  the 
deceased  may  recover  not  only  (1)  for  his  pain  and  suf- 
fering, but  also  (2)  damages  for  his  death  caused  to  the 
survivors  by  loss  and  deprivation  of  his  society,^  although 


Lexington  &  F.  R.  Co.,  53  Ky.  (14 
B.  Mon.)  204;  Covington  Street 
R.  Co.  V.  Packer,  72  Ky.  (9  Bush) 
455,  15  Am.  Rep.  725;  Natchez, 
J.  &  C.  R.  Co.  V.  Coolf,  63  Miss.  38; 
Edgar  v.  Costello,  14  S.  C.  20,  37 
Am.  Rep.  714. 

See  note  41  L.  R.  A.  811. 

11  St.  Louis,  I.  M.  &  S.  R.  Co. 
V.  Freeman,  36  Arlc.  41;  Munroe 
V.  Pacific  Coast  Dredg.  &  Reclm. 
Co.,  84  Cal.  515,  526,  18  Am.  St. 
Rep.  248,  24  Pac.  303;  Rockford, 
R.  I.  &  St.  L.  R.  Co.  V.  Danley,  82 
111.  198,  25  Am.  Rep.  308;  Penn- 
sylvania R.  Co.  V.  Lilly,  73  Ind. 
252;  Walters  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  41  Iowa  71;  Interna- 
tional &  G.  N.  R.  Co.  V.  Kindred, 
57  Tex.   491. 

12  As  to  effect  of  instantaneous 
death,  see,  post,  §  5G2,  footnote. 

13  Little  Rock  &  Ft.  S.  R.  Co. 
V.  Barker,  33  Ark.  350,  34  Am.  Rep. 


44;  Mayhew  v.  Burns,  103  Ind.  328, 
2  N.  E.  793;  Louisville,  N.  A.  & 
C.  R.  Co.  v.  Goodyknootz,  119  Ind. 
Ill,  12  Am.  St.  Rep.  371,  21  N.  E. 
472;  Jackson  v.  Pittsburgh,  C.  C. 
&  St.  L.  R.  Co.,  140  Ind.  241,  49 
Am.  St.  Rep.  142,  39  N.  E.  663; 
Natchez,  J.  &  C.  R.  Co.  v.  Cook,  63 
Miss.  38;  Wilson  v.  Burnstead,  12 
Neb.   1,   10   N.  W.   411. 

14  Jackson  v.  Pittsburgh,  C.  C. 
&  St.  L.  R.  Co.,  140  Ind.  241,  49 
Am.  St.  Rep.  142,  39  N.  E.  663; 
Dalton  V.  Southeastern  R.  Co.,  4 
J.  Scott  N.  S.  (4  Com.  Bench  N.  S.) 
296,  93  Eng.  C.  L.  296. 

Compare:  Pack  v.  N  e  w  York, 
City  of,  3  N.  Y.  489. 

1  See  Philo  v.  Illinois  Cent.  R. 
Co.,  33  Iowa  47;  Nashville  &  C.  R. 
Co.  V.  Prince,  49  Tenn.  (2  Heisk.) 
580;  Nashville  &  C.  R.  Co.  v. 
Smith,  53  Tenn.  (6  Heisk.)  174; 
Collins  V.  East  Tennessee,  V.  & 
G.  R.  Co.,  56  Tenn.  (9  Heisk.)  841. 
756 


ch.  IV.]  NEGLIGENT  ACT — INSTANTANEOUS  DEATH.  §  562 

other  cases  liold  that  the  personal  representative,  having 
the  right  to  sue  (1)  for  the  pain  and  suffering  of  the 
deceased,  or  (2)  for  his  death,  must  elect  between  the 
two  causes  of  actions  and  remedies, ^  and  this  is  thouglit 
to  be  the  better  doctrine,  supported  by  the  weight  of 
authority. 

Instantaneous  death  resulting  from  the  negligent  or 
wrongful  act  complained  of,  the  personal  representative 
of  the  decedent,  or  other  person  entitled  to  sue  for  pain 
and  suffering  of  a  person  who  meets  his  death  by  or 
through  such  an  act,  is  not  entitled  to  maintain  an  action 
for  pain  and  suffering  of  the  deceased,  on  the  theory  that 
the  deceased  did  not  so  suffer,^  and  that  the  remedy,  if 
any,  is  the  statutory  remedy  for  wrongful  death  ;*  but  if 
the  deceased  lived  any  appreciable  time  after  the  injury, 
the  personal  representative,  or  other  party  entitled  to  sue, 
can  recover  for  the  pain  and  suffering  of  the  deceased.^ 
Where  there  is  a  statutory  action  for  wrongful  death, 
and  also  a  statutory  survival  of  the  injured  party's 
right  of  action,  the  personal  representative,  or  other 
party  entitled  to  sue,  must  elect  under  which  he  will 
proceed.^ 

2  Connor  v.  Paul,  75  Ky.  (12  Deceased  becoming  instantly  un- 
Bush)   144.  conscious,  no  recovery  can  be  had 

3  Sherman  v.  Western  Stage  Co.,  for  physical  and  mental  suffering. 
24  Iowa  515 ;  Kennedy  v.  Standard  —Mulchahey  v.  W  a  s  h  b  u  r  n  Car 
Sugar  Refinery,  125  Mass.  90,  28  ^j^^^j  ^o.,  145  Mass.  281.  1  Am. 
Am.  Rep.  214;   Moran  v.  IloUings,  gt.  Rep.  458,  14  N.  E.  106. 

125  Mass.  93;    Tully  v.  Fitchburg 

T>    o       -lOA  TKiT  A'yn     Tv/r   1  1    u  4  DolsoH    V.    Lake    ShOTB    & 

R.  Co.,  134  Mass.  439;   Mulchahey 

xrr     ,  ,  ^       ,,.^,     ,    ri        1.K       M.  S.  R.  Co.,  128  Mich.  444,  448,  87 

V.  Washburn  Car  Wheel  Co.,  145 

N    W    fi29 
Mass.  281,  1  Am.  St.   Rep.  458,  14       ^^-    ^-         • 

N.   E.   106;    Sweetland  v.  Chicago  ^I^.;  Oliver  v.  Houghton  County 

&  G.  T.  R.  Co.,  117  Mich.  329,  43  Street  R.  Co.,  134  Mich.  3G7.  368, 

L.  R.  A.  568,  75  N.  W.  1066;   Cor-  104  Am.  St.  Rep.  607,  3  Ann.  Cas. 

sair.  The,  145  U.  S.  335,  12   Sup.  ^3,  90  N.  W.  434. 

Ct.  Rep.   949,  sub  nom.  Brown  v.  «  Dolson    v.    Lake    Shore    & 

Brown,  36   L.   Ed.  727;    Cheatham  M.    S.    R.    Co.,    128    Mich.    444,   87 

V.  Red  River  Line,  56  Fed.  248.  N.  W.  629. 


57 


§5G2 


CODE   PLEADING   AND    PRACTICE. 


[Pt.  II, 


Alternative  remedies  provided  for  the  recovery  of  dam- 
ages in  the  case  of  death  by  the  negligent  or  wrongful  act 
of  another,  the  general  rule  is  that  only  one  action  can  be 
brought/  An  action  commenced^  and  a  recovery  had  by 
the  deceased  for  the  negligent  or  wilful  act  resulting  in 
his  death,  bars  an  action  by  the  personal  representative, 
or  other  person  entitled  to  sue,  for  damages  arising  out 
of  the  death  resulting  from  the  injury  thus  received,  and 
for  which  a  recovery  was  had  by  the  deceased. '^  So,  also, 
another  action  by  a  party  entitled  to  sue  under  the  stat- 
ute for  damages  for  the  death — e.  g.,  the  widow,  will  bar 
a  subsequent  action  under  the  statute  by  the  minor  heirs, 
there  being  no  joint  right  of  action  under  the  statute, 
even  though  the  first  suit  was  voluntarily  dismissed.^" 
A  husband 's  common-law  right  of  action  for  loss  of  con- 
sortium,^^  on  account  of  a  negligent  or  wrongful  act 


T  See  Munroe  v.  Pacific  Coast 
Dredg.  &  Reclm.  Co.,  84  Cal.  515, 
18  Am.  St.  Rep.  248,  24  Pac.  303; 
Goodsell  V.  Hartford  &  N.  H.  R. 
Co.,  33  Conn.  52;  Halton  v.  Daly, 
106  111.  131;  Long  v.  Morrison,  14 
Ind.  595,  77  Am.  Dec.  72;  State  v. 
Maine  Cent.  R.  Co.,  60  Me.  490; 
Safford  v.  Drew,  10  N.  Y.  Super. 
Ct.  Rep.  (3  Duer)  627;  not  approv- 
ing Barker  v.  Borley,  16  Barb. 
(N.  Y.)  60;  Mason  v.  Union  Pac. 
R.  Co.,  7  Utah  77,  24  Pac.  796; 
Graetz  v.  McKenzie,  3  Wash.  194, 
28  Pac.   331. 

Employers'  Liability  Acts,  fed- 
eral and  state,  and  Workmen's 
Compensation  Acts  can  not  be  dis- 
cussed here  as  to  their  effect  upon 
other  remedies  for  the  relief 
sought,  and  as  to  the  alternative 
remedies  open  to  parties  seeking 
relief;  that  work  has  been  admir- 
ably and  exhaustively  done,  par- 
ticularly for  the  latter,  in  a  note 
in   L.   R.  A.   1916A,  23-272. 


8  U  n  d  e  r  Pennsylvania  statute 
1851,  Pub.  Laws,  674,  §  19.— Birch 
V.  Pittsburgh,  C.  C.  &  St.  L.  R. 
Co.,  165  Pac.  339,  30  Atl.  826. 

Action  abating  with  death  of 
party  injured  who  Instituted  it, 
can  not  be  pleaded  in  abatement 
of  a  suit  given  by  statute  to  per- 
sonal representative  and  next  of 
kin  for  damages  for  the  death. — 
Indianapolis  &  St.  L.  R.  Co.  v. 
Stout,  52  Ind.  143;  International  & 
G.  N.  R.  Co.  V.  Kuehn,  70  Tex. 
582,  8  S.  W.  484. 

9  Hansford  v.  Payne.  74  Ky.  (11 
Bush)  380;  Connor  v.  Paul,  75  Ky. 
(12  Bush)  144;  Littlewood  v.  New 
York,  City  of,  89  N.  Y.  24,  42  Am. 
Rep.  271,  1  Am.  Law  Mag.  247; 
Legg  v.  Button,  64  Vt.  652,  24  Atl. 
1016. 

1 0  McXamara  v.  Slavens,  76  Mo. 

11  See,  ante,  §  561,  footnote  7. 
58 


fh.  IV.]  NEGLIGEXCE  CAUSfXG   DEATH — REMEDIES. 


§562 


resulting  in  his  wife's  deatli,  has  been  said  to  be  barred 
by  the  recovery  of  a  judgment  by  her  personal  repi-e- 
sentative  for  her  death,  in  an  action  under  the  statute, 
for  the  benefit  of  her  estate,  Avhich  is  more  advantageous 
to  the  husband  than  his  common-law  right  would  be,^- 
although  other  cases  hold  that  a  recovery  by  the  personal 
representative,  under  the  statute,  for  her  death,  does  not 
bar  the  husband's  common-law  right  of  action ;^-^  and 
where  a  husband  has  recovered  in  a  common-law  cause 
of  action  for  the  loss  of  consortium,  he  can  not  thereafter 
maintain  an  action,  under  the  statute,  for  her  death, ^*  he 
being  required  to  elect  between  the  two  causes  of  action 
or  remedies. ^^  This  holding  is  on  the  theory  that  the 
statute,  while  it  creates  and  gives  a  new  cause  of  action 
or  remedy,^^  does  not  thereby  confer  a  rigiit  to  two 
coexistent  and  nonconflicting  causes  of  action  or  rem- 
edies'^ upon  the  party.^^   Although,  under  some  statutes 


12  Louisville  &  N.  R.  Co.  v.  Mc- 
Elwain,  78  Ky.  700,  56  Am.  St.  Rep. 
385,  34  L.  R.  A.  788,  34  S.  W.  236. 

13  Mageau  v.  Great  Northern  R. 
Co.,  103  Minn.  290,  15  L.  R.  A. 
(N.  S.)   511,  115  N.  W.  651. 

14  Lynch  v.  Davis,  12  How.  Pr. 
(N.  Y.)   323. 

ijQwensboro  &  N.  R.  Co.  v. 
Barclay,  102  Ky.  16,  28,  43  S.  W. 
177. 

Election  of  remedies  between 
common-law  right  of  action  for 
pain  and  suffering  of  the  de- 
ceased and  the  statutory  cause  of 
action  required.  —  Thomas  v. 
Marysville  Gas  Co.,  108  Ky.  224, 
53   L.    R.   A.    147.   56    S.   W.    153. 

16  Lord  Campbell's  Act,  and  the 
American  statutes  modeled  after 
it,  giving  a  cause  of  action  for  the 
death  of  a  party  caused  by  the 
negligent  or  wrongful  act  of  an- 
other, creates  a  new  cause  of  ac- 
tion.—See  Munro  v.  Pacific  Coast 


Dredg.  &  Reclm.  Co.,  84  Cal.  515, 
524,  18  Am.  St.  Rep.  248,  24  Pac. 
303;  Chicago  &  R.  L  R.  Co.  v. 
Morris,  26  111.  400;  Safford  v. 
Drew,  10  N.  Y.  Super.  Ct.  Rep.  (3 
Duer)  627;  Blake  v.  Midland  R. 
Co.,  18  Ad.  &  E.  N.  S.  (18  Q.  B.^ 
93,  83  Eng.  C.  L.  93;  Pyrn  v.  Great 
Northern  R.  Co.,  2  Best  &  S.  75(«, 
110  Eng.  C.  L.  759,  121  Eng.  Repr. 
1254;  Bradshaw  v.  Lancashire  & 
Y.  R.  Co.,  L.  R.  10  C.  P.  189; 
Leggott  v.  Great  Northern  R.  Co., 
L.  R.  1  Q.  B.  Div.  599:  Read  v. 
Great  Eastern  R.  Co.,  L.  R.  3  Q.  B. 
759. 

17  See,  ante,  §§  539,  510. 

IX  Peers  v.  Nevada  Power,  Lis'.it 
&  Water  Co..  119  Pod.  400.  403. 

As  to  right  to  maintain  more 
than  one  action  lor  a  negli.51  nt  or 
wrongful  aci  resulting  in  death, 
see  Louisville  &  N.  R.  Co.  v.  Mc- 
Elwain.  08  Ky.  700,  56  Am.  Ct.  Rep. 
385,  34  L.  R.  A.  788,  34  S.  W.  2:'.0; 


759 


§  563  CODE  PLEADING  AND  PRACTICE,  [Pt.  II, 

conferring  a  right  of  action  for  the  death  of  a  party  by 
or  through  a  negligent  or  wrongful  act,  it  is  held  that 
there  are  two  causes  of  actions  or  remedies:  (1)  By  the 
husband  under  his  common-law  cause  of  action  or  rem- 
edy, and  (2)  by  the  children  under  the  statute.^^  Much 
depends  upon  the  statutory  provision,  or  rather,  the 
wording  of  the  statute;  and  the  particular  statute  in- 
volved should  be  carefully  considered  in  consulting  and 
relying  upon  the  cases  cited  herein. 

§  563.    Deposit  wrongfully  paid  to  another.    In 

those  cases  in  which  a  deposit  in  a  savings  bank  is  wrong- 
fully paid  out,  without  authority,  to  one  who  is  not  en- 
titled to  it,  the  person  who  is  the  owner  of  the  deposit 
and  rightfully  entitled  to  the  money,  has  his  election  of 
remedies  in  (1)  an  action  against  the  person  wrongfully 
receiving  the  money  on  the  deposit,  for  money  had  and 
received,  or  (2)  an  action  against  the  bank,  as  a  debtor,^ 
to  recover  the  amount  of  the  deposit;  and  an  election  to 
sue  the  person  wrongfully  receiving  the  money  of  the 
deposit,  is  a  bar  to  a  subsequent  action  against  the  bank, 
even  though  the  judgment  against  the  person  receiving 
the  money  of  the  deposit  is  uncollectible.^  This  is  on 
the  ground  that  where  a  party  has  alternative  and  con- 
flicting remedies,^  a  choice  between  them,  once  made,  his 
right  to  follow  the  other  is  gone.'* 

Hill   V.    Pennsylvania  R.   Co.,    178  Gav.  Bank,  76  Wis.  242,  44  N.  W. 

Pa.   St.   223,   56  Am.  St.   Rep.   754,  1096. 

35  L.   R.  A.  196,  35  Atl.  997,  and  2  Fowler  v.  Bowery   Sav.  Bank, 

the  notes  appended  to  those  cases  113  N.  Y.  450,  10  Am.  St.  Rep.  479, 

in     the    selected     and    annotated  4  L.  R.  A.  145,  21  N.  E.  172. 

series.  3  See,  ante,  §  538. 

19  Rogers  V.  Smith,  17  Ind.  323,  4  Bank    of    Beloit   v.    Beale,    31 

79  Am.  Dec.  4S3.  N.  Y.  473,  affirming  20  N.  Y.  Super. 

1  Burrell  v.  San  Francisco  Sav.  Ct.  Rep.   (7  Bosv/.)   615,  which  af- 

Union,  136  Cal.  490,   69  Pac.  144;  frmed   11   Abb.   Pr.  375,   20   How. 

Ovilton    V.    German    Sav.    Soc,    84  Pr.    331;    Kennedy    v.    Thorp,    51 

U.  3.  (17  Wall.)  109,  21  L.  Ed.  618.  N.  Y.  174,  reversing  2  Daly  255,  3 

See  Bryson  v.    Security   Trust   &  Abb.    Pr.    N.    S.    131;     Fields    v. 

Sav.  Bank,   29   Cal.  App.   596,   153  Bland,  81  N.  Y.  239,  8  Abb.  N.  C. 

Pac.  987;  Wegner  v.  Second  Ward  221,  59  Ho.v.  Pr.  85;   Riley  v.  Al- 

7G0 


I 


•h.  IV.] 


ENCROACHMENT  UPON  LAND REMEDIES. 


§564 


§  564.    Encroachment  upon  land  :  Upon  rights  in 

STREET  OR  HIGHWAY.  In  the  casG  of  an  unauthorized  en- 
croachment upon  the  lands  of  another, — e.  g.,  by  open- 
ing an  unauthorized,  or  a  not  properly  authorized,  street 
or  other  public  highway, — the  owner  of  the  fee  in  the 
land  may  (1)  maintain  ejectment;^  and  if  he  can  make  a 
showing  that  (a)  irreparable  injury  will  be  done,  or  that 
(b)  the  parties  are  insolvent,  and  that  he  has  no  ade(|uate 
remedy  at  law,  he  may  (2)  maintain  an  injunction;-  and 
where  authorities  are  proceeding  to  open  a  road  or  street 
through  land  without  having  first  compensated  the  ownei- 
for  the  damages  he  will  sustain  thereby,  and  which  hav,' 
been  assessed  to  him,  he  may  maintain  an  injunction." 

Interest  in  street  or  other  public  highway  of  abutting 
owner  who  owns  the  fee  in  such  street  or  highway — 
e.  g.,  by  constructing  a  street  railway, — such  abutting 
owner  has  various  remedies.  Thus,  he  may  (1)  maintiiin 
ejectmont  in  California,^  Illinois,''  Indiana,"^  Kentucky,' 


bany  Sav.  Bank,  36  Hun  (N.  Y.) 
522;  affirmed,  103  N.  Y.  669;  Boots 
V.  Ferguson,  46  Hun  (N.  Y.)   131. 

1  Le  Blond  v.  Peshtigo,  Town  of, 
140  Wis.  604,  25  L.  R.  A.  (N.  S.) 
511,  123  N.  W.  157.  See  note  25 
L.  R.  A.  (N.  S.)  511. 

2  Leach  v.  Day,  27  Cal.  643,  646; 
More  V.  Massini,  32  Cal.  590,  594; 
Richards  v.  Dower,  64  Cal.  62,  64, 
28  Pac.  113. 

3  McCann  v.  Sierra  County,  7 
Cal.  121,  123;  Leach  v.  Day,  27 
Cal.  643;  San  Francisco  &  S.  J.  R. 
Co.  V.  Mahoney,  29  Cal.  112,  117. 

Compare:  Fox  v.  Western  Pac. 
R.  Co.,  31  Cal.  538,  546;  doctrine 
disapproved  in  Davis  v.  San  Lor- 
enzo R.  Co.,  47  Cal.  517;  Sanborn 
v.  Belden,  51  Cal.  266. 

4  Weyl  v.  Sonoma  Valley  R.  Co., 
69  Cal.  203,  10  Pac.  510;  Porter  v. 
Pacific  Coast  R.  Co.  (Cal.),  18  Pac. 
4  28;  Finch  v.  Riverside  &  A.  R. 
Co.,  87  Cal.  597,  25  Pac.  765. 


Burden  imposed  under  license  or 
franchise  from  a  duly-constituted 
public  authority  defeats  the  abut- 
ting property-owner,  with  fee  in 
the  street  or  other  highway,  to 
maintain  ejectment. — Montgomery 
V.  Santa  Ana  Westminster  R.  Co.. 
104  Cal.  186,  43  Am.  St.  Rep.  89. 
25  L.  R.  A.  654,  37  Pac.  786;  Ed- 
wardsville  R.  Co.  v.  Sawyer,  92  111. 
377;  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Manley,  42  Kan.  577.  22  Pac.  567: 
Phillips  V.  Dunkirk,  W.  &  P.  R. 
Co.,  78  Pa.  St.  177. 

n  Postal  Tel.  Cable  Co.  v.  Katon, 
170  111.  513,  62  Am.  St.  Rep.  :390, 
39  L.  R.  A.  722.  49  .V.  E.  303. 

fi  Terre  Haute  &  S.  E.  R.  Co.  v. 
Rodel.  89  Ind.  128,  46  Am.  Rep. 
164;  Porter  v.  Midland  R.  Co.,  \-o 
Ind.  476.  25  N.  E.  556;  Freedom  v. 
Norris.  128  Ind.  377.  27  N.  E.  S09. 

7  Louisville,  St.  L.  &  T.  R.  Co. 
V.  Hess,  92  Ky.  407,  17  S.  W.  870. 


7G1 


§565  CODE   PI.EADING   AND   PRACTICE.  [Pt.  II, 

New  Jersey,^  New  York,^  Wisconsin, ^^  and  perhaps  else- 
where; or  he  may  (2)  enjoin  the  added  burden  to  the 
street  or  other  public  highway  (a)  where  he  can  bring 
his  cause  within  the  equitable  rules,  (b)  as  a  nuisance, 
(c)  as  a  taking  without  consent;'^  or  he  may  (3)  main- 
tain an  action  in  trespass;^-  and  (4)  he  may  maintain 
an  action  for  damages. 

§  565.     Ex  CONTRACTU  AND  EX  DELICTO  ACTIONS.      The 

distinction  between  the  remedies  in  actions  ex  contractu 
and  actions  ex  delicto  has  been  already  discussed.^ 
These  remedies  may  be  coexistent  on  the  same  state  of 
facts,  but  they  are  alternate  and  conflicting  remedies,- 
and  election  of  one  bars  the  other.  Thus,  bringing  an 
action  ex  contractu  on  an  implied  contract  of  sale  and 
purchase  against  one  converting  property  to  his  own 
use,  bars  a  subsequent  action  for  conversion  against  other 
persons  participating  in  the  wrongful  acts  of  the  first 
defendant;^  bringing  an  action  against  a  broker  for 
fraudulent  retention  of  the  proceeds  of  the  sale  of  stocks, 
bars  an  action  subsequently  brought  against  the  pur- 
chaser of  the  stocks  for  the  purchase-price;^  bringing 
an  action  for  money  had  and  received,  though  dismissed 
before  judgment,-^  bars  a  subsequent  action  against  the 
same  defendant  for  conversion,  on  the  same  state  of 

sBork  V.  United  New  Jersey  R.  Co.,  30  Hun  (N.  Y.)  409;  affirmed. 

&   Canal  Co.,  70  N.  J.  L.  268,  103  96  N.  Y.  18;  Ross  v.  Metropolitan 

Am.  St.  Rep.  808,  1  Ann.  Cas.  861,  Elevated  R.  Co.,  57  N.  Y.   Super. 

64  L.  R.  A.  836,  57  Atl.  412.  Ct.   Rep.    (25   Jones    &    S.)    412,   8 

0  Carpenter  v.  Oswego  &   S.  R.  N.  Y.  Supp.  495;  Fox  v.  Baltimore 

Co.,  24  N.  Y.  655;  Wagner  v.  Troy  &  «•  R-  Co.,  34  W.  Va.  466,  12  S.  E. 

Union  R.  Co.,  25  N.  Y.  526;    Stev-  '^^'^■ 

ens  V.  Skaneateles  R.  Co.,  42  Misc.  '  See,  ante,  §§  537,  538. 

N.  Y.  145,  85  N.  Y.  Supp.  1005.  "  See,  ante,  §§  539,  540. 

3  Terry  v.  Munger,  121  N.  Y.  170, 

loWeisbord  v.  Chicago  &  N.  W.  ^g  ^^               g^g    g   ^_^   ^    ^    220, 

R.  Co..  21  Wis.  602.  24  N.  E.  272. 

11  See  discussion  and  authorities  4Terry    v.    Buck,    40    App.    Div. 
in  note  25  L.  R.  A.  (N.  S.)  808-828.  (x.  y.)  422,  57  N.  Y.  Supp.  980. 

12  Hussner  v.  Brooklyn  City  R.  r.  See,  ante,  §  541. 

762 


I 


ch.  IV.] 


LANDLORD  AND  TENANT — ELECTION. 


§56G 


facts.®  And  where  a  father  brings  an  action  in  contract 
against  the  employer  of  his  son  for  the  wages  of  sucli 
son,  he  can  not  afterwards  sue  the  employer  in  tort  for 
harboring  his  son,''^  or  for  enticing  and  harboring  the  son.** 


§566. 


Landlord  and  tenant.     In  the  case  of  a 


lease  of  real  property  for  a  term,  where  the  tenant 
wrongfully  abandons  the  premises  before  the  expiration 
of  the  term,  the  landlord  may  elect  (1)  to  at  once  re-enter, 
and  sue  for  any  unpaid  rent  remaining  due  at  the  time 
of  the  re-entry;^  or  (2)  to  suffer  the  premises  to  remain 
vacant  until  the  end  of  the  term,  and  then  sue  for  the 
entire  rental;-  or  (3)  to  sublet  the  premises,  for  the 
benefit  of  the  lessor,  to  reduce  the  landlord's  damages, 
giving  to  the  lessee  notice  of  his  refusal  to  accept  the 
surrender,  where  such  notice  is  required,^  and  at  the  end 


c>  Carroll  v.  Fethers,  102  Wis. 
436,  443,  78  N.  W.  604. 

T  Hopf  V.  United  States  Baking 
Co.,  6  Misc.  (N.  Y.)  158,  27  N.  Y. 
Siipp.  217. 

><  Thompson  v.  Howard,  31  Mich. 
309. 

1  Higgins  V.  Street,  19  Okla.  45, 
13  L.  R.  A.  (N.  S.)  398,  92  Pac. 
153;  Guffey  v.  Hukill,  37  W.  Va. 
49,  26  Am.  St.  Rep.  901,  8  L.  R.  A. 
759,  11  S.  E.  754. 

See  discussion  and  authorities 
in  note  13  L.  R.  A.  (N.  S.)  398. 

2  Hig.gins  V.  Street,  19  Okla.  45, 
13  L.  R.  A.  (N.  S.)  398,  92  Pac. 
153;  Welcome  v.  Hess,  90  Cal.  507, 
25  Am.  St.  145,  27  Pac.  369. 

3  ARK.— Meyer  v.  Smith,  33  Ark. 
627.  CAL.— Respini  v.  Porta,  89 
Cal.  464,  23  Am.  St.  Rep.  488,  26 
Pac.  967;  Welcome  v.  Hess,  90 
Cal.  507,  25  Am.  St.  Rep.  145,  27 
Pac.  369.  ILL.— H  u  m  i  s  t  o  n  v. 
Wheeler,  70  111.  App.  349.  IOWA— 
Brown  v.  Cairns,  107  Iowa  727,  77 
N.  W.  478.  KAN.— Brown  V.  Cairns, 


63  Kan.  584,  66  Pac.  639.  LA.— 
Ledoux  V.  Jones,  20  La.  Ann.  539. 
MD.— Biggs  V.  Stueler,  93  Md.  100, 
48  Atl.  727.  MICH.— Stewart  v. 
Sprague,  71  Mich.  50,  38  N.  W. 
673;  Stewart  v.  Sprague,  76  Mich. 
184,  42  N.  W.  1088;  Scott  v. 
Beecher,  91  Mich.  590,  52  N.  W.  20. 
MISS.— Alsup  V.  Banks,  48  Miss. 
664,  24  Am.  St.  Rep.  294,  13  L.  R.  A. 
598,  9  So.  895.  MO.  —  Gerhart 
Realty  Co.  v.  Brecht,  109  Mo.  App. 
25,  84  S.  W.  216.  NEB.— Merrill 
V.  Willis,  51  Neb.  162,  70  N.  W.  914. 
N.  Y. — Underhill  v.  Collins,  132 
N.  Y.  269,  30  N.  E.  576,  affirming 
10  N.  Y.  Supp.  680.  N.  C— Scheel- 
ky  V.  Koch,  119  N.  C.  80,  25  S.  .. 
713.  OKLA.— Higgins  v.  Street,  19 
Okla.  45,  13  L.  R.  A.  (N.  S.)  398. 
92  Pac.  153.  ORE.— B  o  w  e  n  v. 
Clarke,  22  Ore.  566,  29  Am.  St. 
Rep.  625,  30  Pac.  430.  PA.— Auer 
V.  Ptnn,  99  Pa.  St.  370,  44  Am. 
Rep.  111. 

Surrender  accepted,  landlord  es- 
topped   from    claiming    any    rent 


§  566  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

of  the  term  sue  for  the  difference  between  the  agreed 
rental  in  the  lease  and  the  rental  on  the  subletting.*  But 
where  the  landlord  insists  upon  forfeiture  under  the  lease 
by  a  re-entry,  he  loses  all  right  to  recover  damages  for 
the  breach  of  the  contract.^  And  where  a  landlord  pro- 
ceeds at  law  to  enforce  a  forfeiture  of  a  lease  he  can  not, 
pending  that  action,  maintain  a  suit  in  equity  against 
the  tenant  on  the  theory  that  there  is  a  subsisting  lease 
and  tenancy,*^  on  the  ground  that  a  party  may  not  occupy 
inconsistent  positions.'^ 

[  Acceleration  of  maturity  of  rent  provided  for  in  a  lease 
(1)  upon  the  failure  to  pay  any  installment  of  rent  when 
it  becomes  due,  or  (2)  upon  the  insolvency  of  the  lessee, 
and  the  lease  also  provides  for  a  re-entry  and  termina- 
tion of  the  lease  upon  the  happening  of  either  of  those 
events,  the  landlord  may  elect  to  take  possession  and 
recover  the  rent  due  at  the  time  of  such  re-entry ;  but  if 
he  re-enters  he  can  not  recover  the  rent  for  tlie  unex- 
pired term  of  the  lease.^ 

from  original  tenant  further  than  Rep.    625,    30    Pac.    430.     TEX. — 

that  due  at  the  time  of  the  accep-  Racke  v.  Anheuser-Busch  Brewing 

tance   of   surrender.— Welcome   v.  Assoc,  17  Tex.  Civ.  App.  167,  42 

Hess,  90  Cal.  507,  514,  25  Am.  St.  S.  W.  774. 

Rep.  145,  27  Pac.  369.  See  note  13  L.  R.  A.  (N.  S.)  398. 

4  CAL.— Bell,  In  re,  85  Cal.  119,  5  underhill  v.  Saratoga  &  W.  R. 

24  Pac.  633;  Respini  v.  Porter,  89  q^^  20  Barb.  (N.  Y)  467. 

Cal.  464,  23  Am.  St.   Rep.  488,   26  ^^^^^  ^    ^^^^^^^   ^3    ^    y.    153: 

Pac.  967;  Welcome  v.  Hess,  90  Cal.  ^^^^^^  ^^  Duryee,  90  N.  Y.  599,  12 

507,  25  Am.  St.  Rep.  145,  27  Pac.  ^^^    ^^    ^    ^3^  reversing  24   Hun 

369.     NEB.— Merrill  v.  Willis,   51  g^^.    j^^^^^^  ^    Hepburn,  5  N.  Y. 

Neb.  162,  70  N.  W.   914.     N.  Y.—  g^^^^    ^^    ^^^    ^3   g^^^^ )    geg,  3 

Winant  v.  Hines,  14  Daly  187,  par-  ^^^^  ^^^    ^g^^  5  ^^^   pj.    ^gg. 

tially  overrules  Gray  v.  Kaufman  ^                        ^^^^  ^^^^^^^^^  ^^^^ 
Dairv  &  Ice  Cream  Co.,  162  N.  Y. 

388.  76  Am.  St.  Rep.  327,  49  L.  R.  A.  «  Miller    Brothers    Grocery    Co., 

580    56  N    E    903.     OHIO— Kirk-  In  re,  135  C.  C.  A.  521,   L.   R.  A. 

land  V.  Wolf,   7   Ohio  Dec.   Repr.  1916B,  1099,  219  Fed.  851. 

436.    OKLA.— Higgins  v.  Street,  19  As  to  whether  provision   accel- 

Okla.  45,  13  L.  R.  A.   (N.  S.)   398,  erating  maturity  of  rent  is  an  al- 

92     Pac'   153.      ORE.— Bowen    v.  ternative  or  a  concurrent  remedy, 

Clarke,    22    Ore.    566,    29    Am.   St.  see  note  L.  R.  A.  1916B,  1101. 

764 


ell.  IV.]  LAW  AXD  EQUITY — ELECTION.  §  5G7 

§  5C7.  Law  and  equity.  It  is  a  well-settled  prin- 
ciple of  law  that  a  remedy  at  law  and  a  remedy  in  equity 
are  usually  alternative  and  conflicting  remedies;^  hence, 
a  person  having  a  legal  remedy  and  also  an  equitable 
remedy,  by  pursuing  his  legal  remedy  he  may  estop  him- 
self from  subsequently,  in  equity,  pursuing  a  fund  which, 
but  for  his  legal  action,  he  might  have  had  impressed  as 
a  trust  fund  for  his  benefit.-  In  the  case  of  the  sale  of  a 
business  and  the  good  will  thereof,  under  an  agreemojit 
not  to  engage  in  the  same  business  and  compete  A\itli  the 
purchaser,  on  breach  of  this  agreement,  the  purchaser 
may  (1)  seek  an  injunction  in  equity,  or  (2)  bring  an 
action  at  law  for  damages,^  but  he  can  not  do  both.^ 
Where  an  action  at  law"  is  brought  to  enforce  specific 
performance  of  an  incomplete  contract,  and  a  judgment 
on  the  merits  is  rendered  in  favor  of  the  defendant,  tlio 
plaintiff  will  be  estopped  by  his  election  of  remedies  to 
thereafter  bring  an  action  in  equity,  asking  for  the 
reformation  of  the  contract  and  its  specific  enforcement 
as  reformed,^  because  two  such  actions  could  not  procoe<l 
pari  passu  to  trial  and  final  judgment  of  the  same  court ; 
the  plaintiff  would  be  compelled  to  elect  ;^  and,  being 
alternative  and  conflicting,^  neither  could  they  be  prose- 
cuted successively,^  because,  by  bringing  an  action  at 
law  to  enforce  the  contract  in  its  defective  condition, 
the  plaintiff  elected  to  stand  upon  it  in  that  condition,  so 
based  his  remedy,  and  is  bound  by  the  election.'-' 

1  See,  ante,  §  538.  Ins.  Co.,  114  Mass.  175;  Thomas  v. 

2  Hanley  v.  Kelly,  62  Cal.  155.  Joslin,  36  Minn.  1,  1  Am.  St.  Rep. 

3  Bradford  v.  Montgomery  Fur-  624,  29  N.  W.  344;  Steinbach  v. 
niture  Co.,  115  Tenn.  610,  9  L.  R.  A.  Relief  Fire  Ins.  Co..  77  N.  Y.  498. 
(N.  S.)  979,  92  S.  W,  1104.  3:>  Am.  Rep.  655,  affirming  12  Hun 

4  See,  ante,  §  544;  also  note  Ann.  460. 

Cas.  1914B,  1218.  9  Hanley  v.  Kelly,   62   Cal.  135; 

5  Thomas  v.  Joslin,  36  Minn.  1,  Capital  City  Bank  v.  Hilson,  64 
1  Am.  St.  Rep.  624,  29  N.  W.  344.  Fla.  206,  Ann.  Cas.  1914B,  1211.  60 

6  Id.  So.    189;    .Tordan    Co.,    W.    A.,    v. 

7  See,  ante,  §  538.  Sperry,   141    Iowa   225.   119  N.   \V. 

8  Washburn    v.    Great    Western  G92;  Thwing  v.  Great  Western  Ins. 

7G5 


^568 


CODE  PLEADING  AND  PRACTICE. 


[I't.TI, 


§568. 


Master  and  servant.     Under  the  old  rul( 


of  law,  a  servant  or  employee  engaged  for  a  specific 
term,  which  was  an  entire  one,  and  not  severable,  if  the 
servant  or  employee  be  rightfully  discharged  before  the 
end  of  the  period  of  his  employment  or  hiring,  for  good 
cause,  he  was  not  entitled  to  recover  for  his  services  ren- 
dered,^ pro  rata  or  otherwise,-  in  assumpsit  or  in  any 
form  of  action;^  but  where  the  emploj-ment  was  for  a 
stated  period,  and  the  parties  disagreed  and  separated 
before  the  period  expired,  it  has  been  said  that  there 
could  be  a  recovery  for  the  time  actually  served  at  tlie 
rate  for  the  term.*  Where  the  contract  for  a  definite 
period  was  severable,  and  not  entire,— e.  g.,  the  hiring 


Co.,    Ill    Mass.    93;    Washburn   v. 
Great  Western  Ins.  Co.,  114  Mass. 
175;  Lansing  v.  Commercial  Union 
Ins.  Co.,  4  Neb.  Unof.  140,  93  N.  W. 
756;   Steinbach  v.  Relief  Fire  Ins. 
Co.,  77  N.  Y.  498,  33  Am.  Rep.  655, 
affirming  12  Hun  460;   Rehfield  v. 
Winters,  62  Ore.  299,  125  Pac.  289; 
State  ex  rel.  Dorsett  v.  Moss,  36 
Utah  362,  103  Pac.  969;  Rowell  v. 
Smith,  123  Wis.   510,  3  Ann.  Cas, 
773,    102   N.   W.    1,   reviewing   the 
cases  and  pointing  out  that  there 
has  been  a  misapprehension  in  the 
cases  and  a  failure  to  distinguish 
between  the  doctrines  of  res  ad- 
judicata  and  estoppel  by  election. 
See,  ante,   §  544   and  note  Ann. 
Cas.  1914B,  1218. 

1  See:  IOWA— Steele  v.  Crab- 
tree,  130  Iowa  317,  106  N.  W.  753. 
KAN.  —  Spaulding  v.  Pepper,  73 
Kan.  644,  646,  85  Pac.  754.  MINN. 
—Peterson  v.  Mayer,  46  Minn.  468, 
13  L.  R.  A.  72,  49  N.  W.  245;  Mc- 
Garth  v.  Cannon,  55  Minn.  457,  57 
N.  W.  150;  Von  Heyne  v.  Tomp- 
kins, 89  Minn.  81,  93  N.  W.  907; 
Von  Heyne  v.  Tompkins,  89  Minn. 
77,  5  L.  R.  A.  (N.  S.)  524,  93  N.  W. 


901.  MO.  —  Paul  V.  Minneapolis 
Threshing  Machine  Co.,  87  Mo. 
App.  654.  N.  J. — Allen  v.  Ayles- 
worth,  58  N.  J.  Eq.  349,  44  Atl.  178. 
N.  Y.— Huntington  v.  Claflin,  38 
N.  Y.  182,  6  Transc.  App.  168,  af- 
firming 23  N.  Y.  Super.  Ct.  Rep. 
(10  Bosw.)  262.  PA.— Williams  v. 
Eldridge,  9  Kulp  566.  TEX.— Hohl 
V.  Kellogg,  42  Tex.  Civ.  App.  636, 
639,  94  S.  W.  389.  ENG.— Atkin  v. 
Acton,  4  Cor.  &  P.  208,  19  Eng. 
C.  L.  478;  Sherman  v.  Bennett,  1 
Moo.  &  M.  489,  22  Eng.  C.  L.  489: 
Boston  Deep  Sea  Fishing  &  Ice  Co. 
V.  Ansell,  U  R.  39  Ch.  Div.  339. 
See  note  5  L.  R.  A.  (X.  S.)  524. 

2  Voelkel  v.  Banner  Brewing  Co., 
9  Ohio  Cir.  Ct.  Rep.  318;  Turner 
v.  Robinson.  5  Barn  &  Ad.  789,  27 
Eng.  C.  L.  33,  110  Eng.  Repr.  982; 
Spain  V.  Arnott,  2  Stark.  256,  3 
Eng.  C.  L.  400. 

3  Lane  v.  Phillips.  51  N.  C.  (6 
.lones  L.)  455;  Pullen  v.  Green,  75 
N.  C.  215;  Lilley  v.  Elwin,  11  Ad. 
&  E.  N.  S.  (11  Q.  B.)  742,  63  Eng. 
C.  L.  742. 

4  Braiin  v.  Weill,  HI  La.  973,  36 
So.  87;  McClure  v.  Pyatt,  4  McC.  L. 
(S.  C.)  26. 

766 


IV.] 


MASTER   AND  SERVANT ELECTION. 


§568 


being  for  a  year  at  a  stated  gross  sum  payable  monthly, — 
and  the  servant  or  employee  was  discharged  for  good 
cause,  he  could  recover  his  salary  or  wages  for  the  time 
actually  served,  by  the  month,^  because  the  salary  or 
Avages  agreed  upon  became  a  vested  debt  at  the  end  of 
each  month  f  but  he  could  not  recover  for  a  part  of  a 
month,  that  is,  for  the  time  he  had  put  in  from  the  last 
pay-day  until  the  date  of  the  discharge.'^ 

The  prevailing  American  rule  modifies  this  doctrine, 
and  is  to  the  effect  that  a  servant  or  employee  engaged 
for  a  term,  and  discharged  for  good  and  lawful  cause 
before  the  end  of  that  term,  even  though  the  contract  is 
entire  and  not  severable,  is  entitled  to  recover  his  w^ages 
or  salary  for  the  labor  or  services  actually  performed 
up  to  the  time  of  his  discharge,^  subject  to  the  right  of 


5  Hariston  v.  Sale,  14  Miss.  (6 
Smed.  &  M.)  634;  Robinson  v. 
Saunders,  24  Miss.  391;  Peniston 
V.  Huber  Co.,  John  Y.,  196  Pa.  St. 
580,  46  Atl.  934;  Button  v.  Thomp- 
son, L.  R.  4  C.  P.  330. 

6  See  Philadelphia,  W.  &  B.  R. 
Co.  V.  Howard,  54  U.  S.  (13  How.) 
307,  14  L.  Ed.  157;  Button  v. 
Thompson,  L.  R.  4  C.  P.  330. 

T  Hartman  v.  Rogers,  69  Cal.  643, 
646,  11  Pac.  581;  Beach  v.  Mullin, 
34  N.  J.  L.  (5  Vr.)  343;  Voelckel  v. 
Banner  Brewing  Co.,  9  Ohio  Cir. 
Ct.  Rep.  318;  Ridgway  v.  Hunger- 
ford  Market  Co.,  3  Ad.  &  El.  171, 
30  Eng.  C.  L.  97,  111  Eng.  Repr. 
378. 

Compare:  McWilliams  v.  Elder, 
52  La.  Ann.  995,  27  So.  352;  Her- 
cum  V.  Stericker,  10  Mas.  &  W. 
553. 

8  See:  ILL. — Hoffman  v.  World's 
Columbian  Exposition,  55  111.  App. 
290.  KY. — Foster  v.  Watson,  55 
Ky.  (16  B.  Mon.)  377.  LA.— Lam- 
bert   V,    King,    12    La.    Ann.    662: 

7 


McWilliams  v.  Elder,  52  La.  Ann. 
995,  27  So.  352;  Braun  v.  Weill,  111 
La.  973,  36  So.  87.  MD.— Mallonee 
V.  Duff,  72  Md.  283,  19  Atl.  708. 
ME. — Lawrence  v.  Gullifer,  38  Me. 
532.  MISS.— Hariston  v.  Sale,  14 
Miss.  (6  Smed.  &  M.)  634.  MO.— 
Sugg  V.  Blow,  17  Mo.  359;  Anstee 
V.  Ober,  26  Mo.  App.  665.  S.  C— 
Byrd  v.  Boyd,  4  McC.  L.  (S.  C.) 
246,  17  Am.  Dec.  740;  Eaken  v. 
Harrison,  4  McC.  L.  249.  TENN.— 
Jones  V.  Jones,  32  Tenn.  (2  Swan) 
605;  Children  of  Israel  v.  Peres. 
42  Tenn.  (2  Coldw.)  605.  TEX.— 
Meade  v.  Rutledge,  11  Tex.  44; 
Peacock  v.  Coltrane,  44  Tex.  Civ. 
App.  530,  533,  99  S.  W.  107.  WIS.— 
Hildebrand  v.  American  Fine  Art 
Co.,  109  Wis.  171,  53  L.  R.  A.  826. 
85  N.  W.  268;  Graf  v.  Laev,  120 
Wis.  177,  182,  97  N.  W.  898. 

See  note  in  5  L.  R.  A.  (N.  S.) 
527-531. 

Laid  off  and  then  discharged, 
where  there  was  no  employment 
for  a  definite  time,  servant  or  em- 
G7 


§568 


CODE  PLEADING  AND  PRACTICE. 


[Ft.  II, 


the  master  or  employer  to  recoupement  for  damages,^ 
except  in  those  cases  in  which  the  servant  or  employc3 
wilfully  conducts  himself  in  such  a  manner  as  to  render 
his  discharge  necessary.^" 

Wrongful  discharge  by  master  or  employer  of  a  serv- 
ant or  employee  hired  for  a  definite  term  at  a  stated  sal- 
ary or  wage,  such  servant  or  employee  may  (1)  treat  the 
contract  as  in  full  force  and  bring  an  action  for  damages 
for  the  breach  thereof  by  his  wrongful  discharge,  or  (2) 
may  sue  upon  a  quantum  meruit  for  the  services  actually 
rendered.^ ^  Suing  upon  a  quantum  meruit  for  salary  or 
wages  earned,  the  servant  or  employee  makes  an  election 
of  remedies  which  bars  him  from  thereafter  maintaining 
an  action  for  breach  of  contract.^^  But  a  wrongfully 
discharged  servant  or  employee  can  not  maintain  an 
action  for  unearned  salary  or  wages,  notwithstanding 
the  fact  that  he  held  himself  in  readiness  throughout  the 
term  to  perform  his  part  of  the  contract,  his  only  remedy 
is  for  damages  for  breach  of  the  contract,^^  although  the 
contrary  seems  to  have  been  held.^* 


ployee  is  entitled  to  pay  for  the 
time  he  was  laid  off. — Tilford  v. 
Fairfield  Mfg.  Co.,  72  Iowa  60,  33 
N.  W.  364. 

9  Hildebrand  v.  American  Fine 
Art  Co.,  109  Wis.  171,  53  L.  R.  A. 
826,  85  N.  W.  268. 

10  Lawrence  v.  Gullifer,  38  Me. 
532. 

11  Hartman  v.  Rogers,  69  Cal. 
643,  11  Pac.  518;  Brown  v.  Crown 
Gold  Milling  Co.,  150  Cal.  376,  384, 
89  Pac.  86;  Keedy  v.  Long,  71  Md. 
385,  5  L.  R.  A.  759,  18  Atl.  704. 

Contract  of  employment  may  af- 
fect the  rule;  e.  g.,  where  it  is 
stipulated  payment  shall  be  made 
at  the  end  of  the  term  of  employ- 


ment, and  that  the  time  of  pay- 
ment shall  not  be  changed  in  case 
of  breach  or  rescission  of  contract; 
in  which  case  action  can  not  hz 
maintained  either  for  breach  of 
contract  or  upon  quantum  meruit 
until  the  end  of  the  term  of  em- 
ployment.— Knutson  v.  Knapp,  35 
Wis.  86. 

12  Keedy  v.  Long,  71  Md.  385,  5 
L.  R.  A.  759,  18  Atl.  704. 

13  Olmstead  v.  Bach,  78  Md.  132, 
44  Am.  St.  Rep.  273,  22  L.  R.  A.  74, 
27  Atl.  501,  reversing  25  Atl.  343. 

14  Pritchard  v.  Martin,  27  Miss. 
305. 

As  to  death  from  negligence  of 
servant  or  employee,  see,  ante, 
§§  561,  562. 


763 


i 


eh.  IV,]  MORTGAGE  AND  NOTE — ELECTION.  §  569 

§  569.  MoRTGATE  AND  NOTE.  Under  statutory  pro- 
vision in  this  country  the  general  rule  is  that  a  person 
holding  a  debt  evidenced  by  a  bond  or  note,  and  secured 
by  a  mortgage,  has  his  election  of  remedies  (1)  to  bring 
an  action  at  law  on  the  bond  or  note,  or  (2)  to  file  a  suit 
in  equity  to  foreclose  the  mortgage,  but  that  he  can  not 
pursue  both  remedies  at  the  same  time;^  although  in  the 
absence  of  statutory  provision  the  mortgagee's  remedies 
against  the  person  and  property  of  his  debtor,  and  in 
equity  for  the  foreclosure  of  the  mortgage,  are  concur- 
rent remedies-  which  may  be  pursued  at  the  same  time 
or  successively.^  Thus,  the  general  rule  in  this  country 
is  that  a  mortgagee  proceeding  in  equity  to  foreclose  his 
mortgage,  and  asking  that  a  deficiency  judgment  be 
awarded  for  any  balance  left  unpaid  after  applying  the 
proceeds  of  the  sale  of  the  property,  can  not  maintain  an 
action  at  law  on  the  bond  or  note  secured  by  the  mort- 
gage.'' But  a  mortgagee  selling  the  land  on  mortgage 
foreclosure,  and  buying  in  the  property  at  the  sale,  by 
attempting  to  defend  the  title  thus  acquired,  is  not  bound 
as  by  an  election  of  remedies  barring  him  from  claiming 
tlie  right  of  subrogation  to  the  rights  of  earlier  securi- 
ties.^ And  where  the  statute  prohibits  the  taking  of  a 
deficiency  judgment  on  the  foreclosure  of  the  mortgage, 
this  mil  not  prevent  a  suit  at  law  on  the  note,  in  which 

1  See  notes  73  Am.  St.  Rep.  559,  See  authorities  cited  in  note  18 
4  L.  R.  A.  205.                                               Eng.  Rul.  Gas.  440. 

As  to  legal  and  equitable  reme-  -^  Anderson  v.  Plulgram,  30  S.  C. 

dies  in  case  of  a  note  and  mort-  ^^^'  ^^  ^m.  St.  Rep.  917,  4  L.  R.  A. 

gage,    see    Pomeroy's    Eq.    Jurisp.  ^0^'  ^   S.  E.   587.     See   Shields  v. 

T.fv,  \,  ^    s  -..oo  Riopelle,  63  Mich.  458.  30  N.  W.  90. 

(4th  ed.),  §  1183.  .    .                    ^                ^  ^ 

Suing  on  a  note  secured  bymort- 

2  See,  supra,  §§539,  540.  gggg    ^^1    likewise    prevent    the 

3  Colby  V.  McClintock,  68  N.  H.  bringing  of  a  suit  in  equity  to 
176,  73  Am.  St.  Rep.  557,  40  Atl.  foreclose  the  mortgage.— Bacon  v. 
397.  See  Ely  v.  Ely,  72  Mass.  (6  Raybould,  4  Utah  357,  10  Pac.  481, 
Gray)    439;    Lockhart  v.  Hardy,  9  11  Pac.  510. 

Beav.   349,   50   Eng.   Repr.   378,   18  5  Union    Mortgage   &    T.    Co.    v. 

Eng.  Rul.  Gas.  434;  Burnell  v.  Mar-      Peters,  71  Miss.  1058,  30  L.  R.  A. 
tin,  2  Doug.  417.  829,  IS  So.  497. 

I  Code  PI.  and  Pr. — 49  ijQC) 


§§  570,  571       CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

judgment  for  the  full  amount  may  be  given.*  But  a 
mortgagee  wlio  takes,  as  additional  security  for  the  debt, 
the  interest  of  the  mortgagor  in  an  existing  policy  of  fire 
insurance  waives  his  equitable  claim  to  the  proceeds  of 
the  insurance  policy  by  electing  to  sue  upon  the  note, 
and  making  the  insurance  company  a  garnishee.'^ 

§  570.    Passenger  injured  through  negligent  or 

WRONGFUL  ACT.^  It  is  the  public  duty  of  a  common  carrier 
to  carry,  either  goods,  live  stock  or  passengers,  safely; 
and  where  a  common  carrier  contracts  to  transport  a 
passenger  safely,  if  this  contract  is  broken  and  the  pass- 
enger is  injured  through  the  negligent  or  wrongful  act 
of  the  carrier,  or  of  its  agents  or  servants,  the  injured 
passenger  may  elect  (1)  to  sue  for  damages  for  breach 
of  contract,^  or  (2)  proceed  as  for  a  tort  for  the  breach 
of  a  public  duty,  and  recover  according  to  the  principles 
governing  that  class  of  actions.^ 

(^  57X.  Pretermitted  children.  By  statutory  pro- 
visions in  many,  if  not  most,  of  the  states,  where  a  child 
is  born  after  the  execution  of  a  will,  who  is  not  provided 
for  therein  and  not  intentionally  excluded  therefrom,  this 
fact  does  not  invalidate  the  will;^  but  such  after-born 

6  Page  V.  Ford,  65  Ore.  450,  Ann.  538,  117  N.  W.  762;  Pozzi  v.  Ship- 

Cas.  1915A,  1048,  45  L.  R.  A.  (N.  S.)  ton,  8  Ad.  &  El.  963,  35  Eng.  C.  L. 

247,  131  Pac.  1013.  931,  112  Eng.  Repr.  1106;  Brother- 

TFirst  Nat.  Bank  v.  Neilsen,  92  ton  v.  Wood,  3  Brod.  &  Bing.  54, 

Wash.  84,  159  Pac.  113.  7  Eng.  C.  L.  602;   Govett  v.  Rod- 

1  As  to  injury  resulting  in  death  nidge,  3  East  62,  6  Rev.  Rep,  539, 
of  passenger  from  negligent  or  102  Eng.  Repr.  520;  Marshall  v. 
wrongful  act  of  carrier,  or  of  its  York,  N.  C.  &  B.  R.  Co.,  2  J.  Scott 
agents  or  servants,  see,  ante,  (11  C.  B.)  655,  73  Eng.  C.  L.  655; 
§§  561,  562.  Foulkes   v.   Metropolitan   Dist.   R. 

2  McMurtry  V.  Kentucky  Cent.  R.  Co.,  L.  R.  4  C.  P.  Div.  267,  30 
Co.,  84  Ky.  462.  1  S.  W.  815;  Balti-  Moak's  Eng.  Rep.  536,  L.  R.  5  C.  P. 
more  City  Passenger  R.  Co.  v.  Div.  150;  30  Moak's  Eng.  Rep.  740; 
Kemp,  61  Md.  619,  48  Am.  Rep.  Austin  v.  Great  Western  R.  Co., 
134      '  L.  R.  2  Q.  B.  442. 

See,  also,  ante,  §  553.  See,  also,  ante,  §  556. 

3  Id.;  see  Owens  Bros.  v.  Chi-  i  Lowery  v.  Hawker,  22  N.  D. 
cago,  R.  I.  &  P.  R.  Co,  139  Iowa      318,  37   L.  R.  A.   (N.  S.)   1143,  133 

770 


eh.  IV.]  PRETERMITTED  CHILDREX — REMEDIES.  §  571 

child  will  take  the  same  share  in  the  estate  that  he  would 
have  taken  had  the  testator  died  intestate,-  to  be  assigned 
to  him  as  provided  by  law  in  the  case  of  intestate  estates.'' 
The  same  rule  applies  in  the  case  of  any  child  of  the  tes- 
tator, legitimate  or  illegitimate,^  or  of  any  child  of  a 
deceased  child  of  the  testator,  omitted  by  accident  or 
mistake,^  or  not  provided  for,  and  not  intentionally  ex- 
cluded; and  the  accident  or  mistake  need  not  appear  on 
the  face  of  the  will  itself,  is  held  in  many  of  the  cases,® 
the  presumption  being  that  the  omission  was  uninten- 
tional,'^ although  there  seems  to  be  adverse  holdings,  due 
to  the  peculiarities  of  statutory  provisions,^  and  some 
cases  flat-footedly  hold  that  the  burden  of  showing  that 
the  omission  was  not  intentional  is  on  the  pretermitted 
heir.'-' 

Remedies  of  pretermitted  heir  are  usually  provided  by 
the  statute,  and  where  so  provided  is  thought  to  be  ex- 
clusive and  must  be  pursued.  There  are  not  many 
adjudicated  cases  dealing  with  the  subject  of  the  rem- 

N.  W.  918.     See  Church's  Probate  47   Mass.    (6   Mete.)    400,    39    Am. 

Law  and  Practice,  vol.  2,  p.  1157.  Dec.   736;    Converse   v.   Wohs,    86 

2  See  Alexander  on  Wills,  vol.  2,  Mass.  (4  Allen)  512;  Wilder  v. 
§630.  Church's  Probate  Law  and  Thayer,  97  Mass.  439;  Ramsdill  v. 
Practice,  vol.  2,  p.  1157.  Wentworth,    101    Mass.    125,    106 

3  Holloman  v.  Copeland,  10  Ga.  Mass.  320;  Buckley  v.  Gerard,  123 
79;  Waterman  v.  Hawkins,  63  Me.  Mass.  8;  Hurley  v.  O'Sullivan,  137 
156;  Bowen  v.  Hoxie,  137  Mass.  Mass.  86;  Case  v.  Young,  3  Minn. 
527;  Evans  v.  Anderson,  15  Ohio  209;  Gifford  v.  Dyer,  2  R.  I.  99, 
St.  324;  Willard's  Estate,  68  Pa.  57  Am.  Dec.  708;  Newman  v. 
St.  327;  Potter  v.  Brown,  11  R,  I.  Waterman,  63  Wis.  612,  58  Am. 
232;   Talbird  v.  Verdier,  1  Disans.  Rep.  310,  23  N.  W.  696. 

(S.    C.)    592;    Busee   v.    Stiles,    22  r.  Id. 

Wis.  120;    Newman  v.  Waterman,  "  See  Alexander  on  Wills,  vol.  2, 

63  Wis.   612,   58   Am.   Rep.  310,  23  §  636. 

N.  W.   696;    Chicago,   B.   &   Q.  R.  8  See  Bush  v.   Lindsey,   44   Cal. 

Co.  V.  Wasserman,  22  Fed.  872.  121;   Wetherale  v.  Harris,  51  Mo. 

-t  See  Church's  Probate  Law  and  65;   Gifford  v.  Dyer,  2  R.  I.  99,  57 

Practice,  vol.  1,  p.  58.  Am.  Dec.  708. 

'.  Pearson    v.    Pearson,    46    Cal.  ;•  Brown  v.  Brown,  71  Neb.  207, 

609;  Doane  v.  Lake,  32  Me.  268,  52  115    Am.   St.    Rep.   568,   98    N.   W. 

Am.    Dec.   654;    Wilson   v.    Foskit,  721. 

771 


§572 


CODE   PLEADING  AND   PRACTICE. 


[Pt.ll, 


edies  to  be  pursued  by  a  pretermitted  heir;  yet  space 
will  not  permit  of  their  discussion  in  detail  in  this  place ; 
and  we  must  be  content  with  a  reference  to  where  they 
may  be  found  collected. ^^ 


§572. 


Principal  and  agent.    It  is  a  general  prin- 


ciple of  law  that  when  an  agent  of  an  undisclosed  prin- 
cipal deals  with  a  third  person  without  disclosing  his 
agency,  he  becomes  personally  liable  on  the  contract;^ 
and  this  is  true  also  where  he  discloses  the  fact  that  he 


10  Cases  as  to  remedy  of  preter- 
mitted  heirs  are  fully  collected 
and  discussed  in  note  in  37  L.  R.A. 
(N.  S.)  1143. 

1  CAL. — Bradford  v.  Woodworth, 
108  Cal.  684,  41  Pac.  797;  Jewell 
V.  Colonial  Theater  Co.,  12  Cal. 
App.  681.  COLO.  —  Heaton  v. 
Myers,  4  Colo.  59;  Mackey  v. 
Briggs,  16  Colo.  143,  26  Pac.  131; 
Haviland  v.  Mayfield,  38  Colo.  185, 
88  Pac.  148.  CONN.  —  Jones  v. 
Aetna  Ins.  Co.,  14  Conn.  501; 
Hall  V.  Breandbury,  40  Conn.  32. 
IDAHO — Whitney  v.  Woodmansee, 
15  Idaho  735,  99  Pac.  968.  ILL.— 
Wheeler  v.  Reed,  36  111.  81.  KAN. 
— Wolfley  V.  Rising,  8  Kan.  297. 
KY. — Rushing  v.  Sebree,  75  Ky. 
(12  Bush)  198.  LA.— Bedford  v. 
Jacobs,  4  Mart.  N.  S.  (La.)  530; 
Sere  v.  Faures,  15  La.  Ann.  189. 
ME.— Upton  V.  Gray,  2  Me.  (2 
Greenl.)  373;  Keen  v.  Sprague,  3 
Me.  (3  Greenl.)  77.  MD.— York 
County  Bank  v.  Stein,  24  Md.  447. 
MASS. — Stackpole  v.  Arnold,  11 
Mass.  27;  James  v.  Bixby,  11  Mass. 
34;  French  v.  Price,  41  Mass.  (24 
Pick.)  13;  Raymond  v.  Crown  & 
E.  Mills,  43  Mass.  (2  Mete,)  319; 
Paige  V.  Stone,  51  Mass.  (10  Mete.) 
160,  43  Am.  Dec.  420;  Southard  v. 
Sturtevant,  109  Mass.  390;  Welsch 


V.  Goodwin,  123  Mass.  71,  25  Am. 
Rep.  24;  Brigham  v.  Herrick,  173 
Mass.  460,  53  N.  E.  906.  MO.— 
McClellan  v.  Parker,  27  Mo.  162; 
Einstein  v.  Holt,  52  Mo.  340.  N.  M. 
—Luna  V.  Mohr,  3  N.  M.  63,  1  Pac. 
860.  N.  Y. — Corlies  v.  Cummings, 
6  Cow.  181;  Mauri  v.  Heffernan, 
13  Johns.  58;  Rathbone  v.  Bud- 
long,  15  Johns.  1;  McGraw  v.  God- 
frey, 65  N.  Y.  64,  16  Abb.  Pr.  N.  S. 
358,  affirming  14  Abb.  Pr.  N.  S. 
397;  Baltzen  v.  Nicolay,  53  N.  Y. 
467,  reversing  35  N.  Y.  Super.  Ct. 
Rep.  (2  Jones  &  S.)  203;  Newman 
V.  Greeff,  101  N.  Y.  663,  5  N.  E. 
335;  De  Remer  v.  Brown,  165  N.  Y. 
410,  59  N.  E.  129,  affirming  36  App. 
Div.  634,  55  N.  Y.  Supp.  367.  PA.— 
Meyer  v.  Barker,  6  Binn.  228;  Par- 
ker V.  Donaldson,  2  Watts  &  S.  9; 
Youghiogheny  Iron  &  Coal  Co.  v. 
Smith,  66  Pa.  St.  340.  S.  C— Long 
V.  McKissick,  50  S.  C.  218,  27  S.  E. 
636.  VT.— Baldwin  v.  Leonard,  39 
Vt.  260.  WASH. — Gordon  v.  Brin- 
ton,  55  Wash.  568,  133  Am.  St.  Rep. 
1038,  104  Pac.  832.  FED.— Farrell 
V.  Campbell,  3  Bened.  8,  Fed.  Cas. 
No.  4681;  Tiernan  v.  Andrews,  3 
Wash.  C.  C.  564,  567,  Fed.  Cas.  No. 
14026;  Purdom  Naval  Stores  Co. 
V.  Western  Union  Tel.  Co.,  153 
Fed.  327. 

See  note  34  L.  R.  A.  (N.  S.)  518. 


772 


•h.  IV.] 


PRINCIPAL  AND  AGENT — ELECTION. 


§572 


is  acting  as  agent  for  another  without  disclosing  the 
identity  of  such  other  person  for  whom  he  is  acting.- 
When  the  person  with  whom  the  agent  thus  deals  dis- 
covers the  identity  of  the  undisclosed  principal,  he  has 
an  election  (1)  to  sue  the  agent  or  (2)  sue  the  undis- 
closed principal,  and  pursue  such  suit  to  judgment;  but 
he  can  not  hold  both  the  agent  and  his  principal,  and  on 
election  to  pursue  the  one  is  a  bar  to  an  action  against 
the  other,^  in  those  cases  in  which  the  plaintiff  acts  with 
full  knowledge  of  the  facts  in  the  case,  but  not  otherwise,^ 


li  See:  ALA. — Chestnut  v.  Tyson, 
105  Ala.  149,  53  Am.  St.  Rep.  101, 
16  So.  723.  CONN.— Mitchell  v. 
Hazen,  4  Conn.  495,  10  Am.  Dec. 
169;  Belden  v.  Seymour,  8  Conn. 
19.  FLA. — Wilson  v.  Frldenberg, 
22  Fla.  314.  ILL.— Mason  v.  Cald- 
well, 10  111.  196,  48  Am.  Dec.  330. 
IND. — Merrill  v.  Wilson,  6  Ind. 
426;  Hayes  v.  Shirk,  167  Ind.  569, 
78  N.  E.  653;  De  Coudres  v.  Union 
Trust  Co.,  25  Ind.  App.  271,  81  Am. 
St.  Rep.  95,  58  N.  E.  90.  KAN.— 
Klopp  V.  Moore,  6  Kan.  27.  KY.— 
Scott  V.  Messick,  20  Ky.  (4  T.  B. 
Mon.)  535;  Wilkins  v.  Duncan,  70 
Ky.  (2  Litt.)  168.  ME.— Keen  v. 
Spragur,  3  Me.  (3  Greenl.)  77. 
MASS.  —  Sumner  v.  Williams,  8 
Mass.  162,  5  Am.  Dec.  83;  Ray- 
mond V.  Crown  &  E.  Mills,  43 
Mass.  (2  Mete.)  319;  Winsor  v. 
Griggs,  59  Mass.  (5  Cush.)  210; 
Cabot  Bank  v.  Morton,  70  Mass. 
(4  Gray)  156;  Wilder  v.  Cowles, 
100  Mass.  487.  MISS.— Buckles  v. 
Cunningham,  14  Miss.  (6  Smed.  & 
M.)  358.  MO. — Murphy  v.  Price, 
48  Mo.  247.  MONT.— Taylor  v. 
Holter,  1  Mont.  688.  NEB.— Bridges 
V.  Bidwell,  20  Neb.  185,  29  N.  W. 
302.  NEV.— Painter  v.  Kaiser,  27 
Nev.  421,  103  Am.  St.  Rep.  772,  10 


Ann.  Cas.  765,  65  L.  R.  A.  672,  76 
Pac.  747;  Esden  v.  Kaiser,  27  Nev. 
434,  76  Pac.  1134.  N.  Y.— Cunning- 
ham V.  Soules,  7  Wend.  106;  Bee- 
bee  V.  Robert,  12  Wend.  413,  27 
Am.  Dec.  132;  Canal  Bank  v.  Bank 
of  Albany,  1  Hill  287;  Taintor  v. 
Pendergast,  3  Hill  72,  38  Am.  Dec. 
618.  N.  C— Godley  v.  Taylor,  14 
N.  C.  (3  Dev.  L.)  178.  PA.-^Allen 
V.  Roberts,  11  Serg.  &  R.  362. 
S.  C. — Bacon  v.  Sondley,  3  Strobh. 
L.  542,  51  Am.  Dec.  646;  Edings  v. 
Brown,  1  Rich.  L.  255.  TENN.— 
Jordan  v.  Trice,  9  Tenn.  (Yerg.) 
479.  VT.— Higley  v.  Smith,  1  D. 
Chip.  409,  12  Am.  Dec.  701;  Royce 
V.  Allen,  28  Vt.  234;  Prouty  v. 
Mather,  49  Vt.  415.  WIS.— North 
V.  Henneberry,  44  Wis.  306. 

3  Gay  V.  Wren,  109  Minn.  101,  26 
L.  R.  A.  (N.  S.)  742,  123  N.  W.  295; 
Murphy  v.  Hutchinson,  93  Miss. 
643,  21  L.  R.  A.  (N.  S.)  785,  48  So. 
178.  See  notes  2  L.  R.  A.  812,  21 
L.  R.  A.  (N.  S.)  786;  26  L.  R.  A. 
(N.  S.)   742. 

4  Steele-Smith  Grocery  Co.  v. 
Potthast,  109  Iowa  413,  80  N.  W. 
517;  Madden  v.  Louisville,  N.  O. 
&  T.  R.  Co.,  66  Miss.  258,  6  So. 
181;  Murphy  v.  Hutchinson,  93 
Miss.  643,  21  L.  R.  A.  (N.  S.)  785, 
48  So.  178;  Remmel  v.  Townsend, 


773 


§  572  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

and  acts  with  a  manifest  intention  to  elect  between  the 
two.^  Where  the  action  is  commenced  against  the  agent 
and  the  undisclosed  principal  jointly,  as  it  may  properly 
be  in  some  cases,  on  motion  the  plaintiff  will  be  compelled 
to  elect  against  which  he  will  proceed;*^  but  where  an 
agent  and  principal  thus  sued  both  answer  and  both  deny 
(1)  the  contract  and  (2)  the  agency,  the  plaintiff  should 
not  be  required  to  elect  against  which  he  will  proceed  until 
the  evidence  discloses  (1)  whether  there  was  a  contract 
Avith  the  agent,  and  (2)  whether  the  relation  of  principal 
and  agent  existed  between  the  parties^ 

Agent  acting  without  authority  in  the  premises  in  en- 
tering into  a  contract  for  another,  the  third  party  with 
whom  the  contract  is  entered  into  may  have  various 
remedies:  (1)  To  sue  on  the  contract  itself,  against  the 
agent  as  principal,^  although  in  many  jurisdictions  an 
agent  presuming  to  act  without  authority  is  no  longer 
held  liable  as  a  principal ;''  (2)  may  maintain  an  action 
for  money  had  and  received,  where  the  agent  received 

83  Hun  (N.  Y.)  353,  31  N.  Y.  Supp.  Supp.   180;    Kennedy  v.   Stone- 

984.  house,   13  N.   D.   232,   3   Ann.   Cas. 

5  Laguna  Valley  Co.  V.  Fitch,  121  217,  100  N.  W.  258;  McArthur  v. 
111.  App.  607.  Ladd,   5   Ohio  514;    Edgings  v. 

6  Gay  V.  Wren,  109  Minn.  101,  26  Brown,  1  Rich.  L.  (S.  C.)  255. 

L.  R.  A.  (N.  S.)  742,  123  N.  W.  295.  See    note    34    L.    R.    A.    (N.    S.) 

7  Gay  V.  Wren,  109  Minn.  101,  26      518. 

L.  R.  A.  (N.  S.)  742,  123  N.  W.  295.  9  See,  among  other  cases.  Wal- 

s  See  Ormsby  v.  Kendall,  2  Ark.  lace  v.  Bently,  77  Cal.  19,  11  Am. 

338;    Shelton  v.   Darling,   2   Conn.  St.  Rep.  231,  18  Pac.  788;  Farmers' 

435;    Klopp  v.  Moore,  6  Kan.   27;  Co-operative  Trust  Co.  v.  Floyd,  47 

Rollins    V.    Phelps,    5    Minn.    403;  Ohio  St.  525,  21  Am.  St.  Rep.  846, 

Brown   v.    Johnson,    20    Miss.    (12  12  L.  R.  A.  346,  26  N.  E.  110;  An- 

Smed.  &  M.)  398,  51  Am.  Dec.  118;  derson  v.  Adams,  43  Ore.  621,  74 

White  V.  Skinner,  13  Johns.  (N.  Y.)  Pac.    215;    Roberts    v.    Tattle,    36 

367,    7    Am.    Dec.    381;     Stone    v.  Utah  634,  105  Pac.  916;    Oliver  v. 

Wood,  7  Cow.   (N.  Y.)  453,  17  Am.  Morametz,  97  Wis.   332,  27  N.  W. 

Dec.   529;    Rossiter  v.  Rossiter,    8  877;   Kent  v.  Addicks,  60  C.  C.  A. 

Wend.    (N.   Y.)    494,   24    Am.    Dec.  660.  126  Fed.  112. 

462;  Taylor  v.  Nostrand.  134  N.  Y.  See,  also,  note  34  L.  R.  A.  (N.  S.) 

108,  31  N.  E.  246,  affirming  12  N.  Y.  530. 

774 


ch.  IV.] 


EXEMPTION — PARTICULAE   OBLIGATION. 


§573 


any  money  ;^°  (3)  bring  an  action  in  assumpsit,  upon  tlie 
express  or  implied  warranty  of  authority  j^^  and  (4)  may 
maintain  an  action  in  tort,  where  there  was  actual  fraud 
committed,^-  and  some  of  the  cases  hold  that  the  action 
may  be  maintained  irrespective  of  any  fraud  actually 
committed.  ^^ 


§573. 


Property  exempt  from  debts — Particular 


OBLIGATION.    In  thosc  cases  in  which  property  is  exempt 
from  general  debts  under  the  statute,  but  liable  for  par- 
ticular obligations, — e.   g.,  purchase-price  of  the  land,, 
work  and  labor  and  material  in  the  construction  and^' 
repair,  or  where  the  liability  attached  before  the  property* 
became  exempt,^ — the  holder  of  the  particular  obligation' 

Pac.  916;  Haupt  v.  Vint,  68  W.  Va.f 
657,  34  L.  R.  A.  (N.  S.)  518;  Dexter" 
Sav.  Bank  v.  Friend,  90  Fed.  705; 
Kent  V.  Addicks,  60  C.  C.  A.  660, 
126  Fed.  112. 

i2  0gden  V.  Raymond,  22  Conn. 
379,  58  Am.  Dec.  429;  Benjamin  v. 
Mattler,  3  Colo.  App.  227,  32  Pac. 
837;  Groeltz  v.  Armstrong,  125 
Iowa  39,  99  N.  W.  128;  Abbey  v. 
Chase,  60  Mass.  (6  Cush.)  54; 
Bartlett  v.  Tucker,  104  Mass.  336, 

6  Am.  Rep.  240;  Skaaraas  v.  Fin- 
negan,  32  Minn.  107,  19  N.  W.  729; 
Cole  V.  O'Brien,  34  Neb.  68,  33 
Am.  St.  Rep.  616,  51  N.  W.  316; 
Dung  V.  Parker,  52  N.  Y.  494,  re- 
versing 3  Daly  89;  Noe  v.  Gregory, 

7  Daly  (N.  Y.)  283;  Campbell  v. 
Muller,  19  Misc.  (N.  Y.)  189,  43 
N.  Y.  Supp.  235;  Delius  v.  Caw- 
thorn,  13  N.  C.  (2  Div.  L.)  90; 
Clark  V.  Foster.  8  Vt.  98;  Oliver  v. 
Morawetz,  97  Wis.  332,  72  N.  W. 
877. 

isConant  v.  Alvord,  166  Mass. 
311,  44  N.  E.  250. 

I  Gregory  Co.  v.  Cale,  115  Minn. 
508,  37  L.  R.  A.  (N.  S.)  156,  133 
N.  W.  75. 


10  Harper  v.  Little,  2  Me.  14,  11 
Am.  Dec.  25;  Jefts  v.  York,  64 
Mass.  (10  Cush.)  392;  Delius  v. 
Cawthorn,  13  N.  C.  (2  Div.  L.)  90; 
Russell  V.  Koonce,  104  N.  C.  237, 
10  S.  E.  256. 

11  Dale  V.  Donaldson  Lumber 
Co.,  48  Ark.  188,  3  Am.  St.  Rep. 
224,  2  S.  W.  Rep.  703;  Groeltz  v. 
Armstrong,  125  Iowa  39,  99  N.  W. 
128;  Conant  v.  Alvord,  166  Mass. 
315,  44  N.  E.  250;  White  v.  Mad- 
ison, 26  N.  Y.  117,  26  How.  Pr. 
418;  Baltzen  v.  Nicolay,  53  N.  Y. 
467;  Simmons  v.  More,  100  N.  Y. 
140,  2  N.  E.  640;  Taylor  v.  Nos- 
trand,  134  N.  Y.  108,  31  N.  E.  246, 
affirming  12  N.  Y.  Supp,  180;  New 
York  Bank  Note  Co.  v.  McKeige, 
31  App.  Div.  (N.  Y.)  188,  52  N.  Y. 
Supp.  597;  Noe  v,  Gregory,  7  Daly 
(N.  Y.)  283;  Miller  v.  Reynolds, 
92  Hun  (N.  Y.)  400,  36  N.  Y.  Supp. 
660;  Campbell  v.  Muller,  19  Misc. 
(N.  Y.)  192,  43  N.  Y.  Supp.  233,  1 
Am.  Neg.  Rep.  326;  Farmers'  Co- 
operative Trust  Co.  v.  Floyd,  47 
Ohio  St.  525,  21  Am.  St.  Rep.  846, 
12  L.  R.  A.  346,  26  N.  E.  110; 
Roberts  v.  Tuttle,  36  Utah  634,  105 


775 


§  574  CODE  PLEADING  AND  PRACTICE.  [Pt.  II, 

for  which  the  property  is  liable,  notwithstanding  the  gen- 
eral exemption,  has  an  election  of  remedies :  (1)  In  equity, 
setting  forth  in  his  complaint  all  the  facts,  and  demanding 
a  lien  upon  the  particular  property  described  in  the  com- 
plaint; (2)  he  may  proceed  by  attachment;  or  (3)  he  may 
proceed  by  an  ordinary  action  for  the  recovery  of  money, 
and  levy  an  execution  on  the  property  under  the  judgment 
obtained.^ 

§  574.    Purchaser  at  judicial,  or  execution  sale. 

A  bona  fide  purchaser  at  a  judicial  or  execution  sale, — 
e.  g.,  on  foreclosure  of  a  mortgage,^ — submits  himself  pro 
hac  vice^  to  the  jurisdiction  of  the  court,^  and  when  he 
relies  upon  the  regularity  of  the  proceedings,  or  the  cor- 
rectness of  a  judgment  which  falsely  recites  that  all  the 
defendants  were  duly  served  with  process,  on  learning  of 
the  infirmities  which  render  the  sale  invalid,  or  on  the 
sale  being  set  aside  because  of  such  infirmities,  the  pur- 
chaser has  open  to  him  various  remedies:  (1)  To  be 
subrogated  to  the  rights  and  interests  of  the  judgment 
creditor,  when  the  purchase  money  is  used  to  pay  the 
debt  ;^  and  where  subrogation  would  afford  an  inadequate 

2  Id.     See  Bills  v.  Mason,   42  cover  the  rent  he  was  compelled  to 

Iowa  329;    Langevin  v.  Bloom,  69  pay;  his  remedy  is  by  application 

Minn.  22,  65  Am.  St.  Rep.  546,  71  in  the  foreclosure  suit. — Stokes  v. 

N.  W.  697;  Nickerson  v.  Crawford,  Hoffman  House,  167  N.  Y.  554,  53 

74  Minn.  366,  73  Am.  St.  Rep.  354,  L.  R.  A.  870,  6  N.  E.  667,  affirming 

77  N.  W.  292;  Durham  v.  Bostick,  46  App.  Div.   120,  61  N.  Y.  Supp. 

72  N.  C.  357;  Douglas  v.  Gregg,  66  821. 

Tenn.  (&  Baxt.)  384.  2  Bl.  Com.  243. 

See,  also,  notes  12  Am.  Dec.  263,  3  Boggs  v.   Fowler,   16  Cal.  560, 

264;    28    Am.    Dec.    199-202;     37  76    Am.    Dec.    561;     McCarthy    v. 

L.  R.  A.  (N.  S.)  156-159.  State  Bank  of  Townsend,  54  Mont. 

1  McCarthy  v.   State   Bank  of  319,    170   Pac.    15;    Andrews   v. 

Townsend,  54  Mont.  319,  170  Pac.  O'Mahoney,  112  N.  Y.  567,  20  N.  E. 

15.  374,  affirming  1  N.  Y.  Supp.  750. 

Purchaser  of   leasehold  at  fore-  -i  See:  ARK. — Meher  v.  Cole,  50 

closure    sale    who,    by   the   terms,  Ark.   361,   7    Am.   St.    Rep.    101,    7 

was  to  receive  the  same  fee  from  S.  W.  451;    Bond  v.  Montgomery, 

unpaid  rent,  can  not  maintain  an  56  Ark.  563,  35  Am.  St.  Rep.  119, 

independent  action   at  law   to   re-  20   S.   W.   525.     ILL. — McHany   v. 

776 


ch.  IV.] 


PURCHASER  AT  JUDICIAL,  ETC.,  SALE. 


§574 


remedy,  (2)  an  action  for  reimbursement;^  (3)  an  action 
against  the  debtor  for  the  amount  of  money  paid  as  the 
purchase-price,  together  with  interest  and  necessary  dis- 
bursements for  taxes  I**  (4)  an  action  against  the  creditor 
for  the  amount  of  money  paid  as  the  purchase-price, 
together  with  interest  thereon  and  necessary  disburse- 
ments for  taxes;'  (5)  an  action  against  the  sheriff  or 
other  officer  making  the  sale, — where  the  sheriff  or  other 
officer  is  guilty  of  a  breach  of  any  of  the  duties  connected 
with  his  office  in  the  matter  of  conducting  the  sale,  which 


Schenk,  88  111.  357;  St.  Louis  & 
S.  Coal  &  M  i  n.  Co.  v.  Sandoval 
Coal  &  Min.  Co.,  116  111.  170,  5 
N.  E.  370;  Bruschke  v.  Wright,  166 
111.  183,  57  Am,  St.  Rep.  125,  46 
N.  E.  813.  IND.— Seller  v.  Linger, 
24  Ind.  264;  Muir  v.  Berkshire,  52 
Ind.  149;  Wilson  v.  Brown,  82  Ind. 
471.  IOWA— O'Brien  v.  Harrison, 
59  Iowa  686,  12  N.  W.  256,  13  N.  W. 
764.  KY.— Miller  v.  Hall,  64  Ky. 
(1  Bush)  229;  Forst  v.  Davis,  101 
Ky.  343,  41  S.  W.  27.  MD.— John- 
son V.  Robertson,  34  Md.  165. 
MONT.— McCarthy  v.  State  Bank 
of  Townsend,  54  Mont.  319,  170 
Pac.  15.  TEX.— B  urns  v.  Led- 
better,  54  Tex.  374,  56  Tex.  282; 
Jones  V.  Smith,  55  Tex.  383.  W.  VA. 
— Haymond  v.  Camden,  22  W.  Va. 
180;  Hull  V.  Hull,  35  W.  Va.  155, 
29  Am.  St.  Rep.  800,  13  S.  E.  49. 

See,  also,  notes  30  Am.  Dec.  177; 
2  Am.  St.  Rep.  326;  35  Am.  St. 
Rep.  126;  44  Am.  St.  Rep.  713;  59 
L.  R.  A.  42-55. 

Fraud  on  part  of  purchaser 
shown,  such  relief  denied. — See 
Milwaukee  &  M.  R.  Co.  v.  Soulter, 
80  U.  S.  (13  Wall.)  517,  20  L.  Ed. 
534. 

See  cases  cited,  7  Rose's  Notes 
of  U.  S.  Reps.,  pp.  700-1. 

5  McCarthy  v.    State   Bank  of 


Townsend,  54  Mont.  319,  170  Pac. 
15. 

Action  for  reimbursement  lies 
independent  of  statute. — Id.;  Hall 
V.  Dineen,  26  Ky.  L.  Rep.  1017,  83 
S.  W.  120;  Schwinger  v.  Hickok, 
53  N.  Y.  280,  282;  Hoxter  v.  Pople- 
ton,  9  Ore.  481;  Henderson  v. 
Overton,  10  Tenn.  (2  Yerg.)  394, 
24  Am.  Dec.  492. 

6  Richmond  v.  Marston,  15  Ind. 
134;  Hawkins  v.  Miller,  26  Ind. 
173;  Geoghegan  v.  Ditto,  59  Ky. 
(2  Mete.)  433,  74  Am.  Dec.  413; 
McLean  v.  Martin,  45  Mo.  393; 
Stone  V.  Darnell,  25  Tex.  Supp. 
430,  78  Am.  Dec.  582. 

V  See:  FLA. — Myers  v.  Nourse, 
5  Fla.  516.  KY.—  Wolf  or  d  v. 
Phelps,  25  Ky  (2  J.  J.  Marsh.)  31; 
Salter  v.  Dunn,  64  Ky.  (1  Bush  I 
311.  MICH.— McKay  v.  Coleman, 
85  Mich.  60,  48  N.  W.  203.  MOXT. 
— EUing  v.  Harrington,  17  Mont. 
322,  42  Pac.  851.  N.  Y.— Kohler  v. 
Kohler,  2  Edw.  Ch.  69;  Chapman 
V.  Brooklyn,  City  of,  40  N.  Y.  372; 
Schwinger  v.  Hickok,  53  N.  Y.  280. 
TENN.— Ward  v.  Southerland,  7 
Tenn.  (Peck.)  1  appendix.  FED.— 
Deputron  v.  Young,  134  U.  S.  241, 
33  L.  Ed.  923,  10  Sup.  Ct.  Rep.  539: 
Lamb  v.  Ewing,  54  Fed.  269,  4 
C.  C.  A.  320,  12  U.  S.  App.  11. 
77 


§574 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  II, 


breach  of  duty  causes  the  invalidity  of  the  sale, — on  his 
bond  for  the  amount  of  the  purchase-price  paid,  together 
with  interest  and  necessary  disbursements  for  taxes.® 
In  all  these  remedies,  except  that  of  substitution,  the  pur- 
chaser will  be  chargeable  with  the  reasonable  rental  value 
of  the  premises  while  in  possession.® 


8  See  Hightower  v.  Handlin,  27 
Ark.  20  (execution  void,  the  sale 
made  after  the  execution  should 
have  been  returned) ;  Fleming  v. 
Lockhart,  10  Mart.  (La.)  308 
(property  not  advertised  as  re- 
quired by  law) ;  Friedlander  v. 
Bell,  17  La.  Ann.  42  (property  sold 
not  levied  upon  or  seized) ;  Bowne 
v.  O'Brien,  5  Daly  (N.  Y.)  474 
(sale  set  aside  for  irregularities) ; 
Bragg  V.  Thompson,  19  S.  C.  672 


(judgment  rendered  against  a  per- 
son deceased  at  the  time). 

Actual  and  constructive  notice 
on  part  of  purchaser,  at  the  time 
of  sale,  of  the  existence  of  irregu- 
larities rendering  any  sale  that 
may  be  made  void,  can  not  main- 
tain an  action  against  the  sheriff 
on  his  bond  to  recover  the  pur- 
chase money  paid. — State  ex  rel. 
Sage  V.  Paine,  54  Ind.  450. 

0  See  Myers  v.  Nourse,  5  Fla. 
516. 


778 


PART  III. 

PARTIES  TO  ACTIONS. 

CHAPTER  I. 

IN  GENERAL. 

§  575.  Parties  to  an  action — Who  are. 

§  576.  Who  are  not  parties. 

§  577.  Who  may  not  be  parties. 

§  578.  In  legal  actions. 

§  579,  In  suits  in  equity. 

§  580.  Procedural  codes  adopt  doctrine  of  equity. 

§  581.  Cause  of  action  and  what  it  includes. 

§  582.  Actions  ex  contractu  and  ex  delicto. 

§  575.  Parties  to  an  action — Who  are.  In  the  larger 
legal  sense  the  parties  to  a  civil  action  are,  when  used  in 
connection  with  the  subject-matter  of  the  issue,  all  the 
persons  having  a  right  to  control  the  proceedings,  to 
make  a  defense,  to  adduce  and  cross-examine  witnesses, 
and  appeal  from  the  decision  or  judgment,  if  an  appeal 
lies.^  Persons  not  having  these  rights  are  regarded  as 
strangers  to  the  action.  Specifically  they  are  (1)  the  per- 
sons by  whom,  and  (2)  the  persons  against  whom,  actions 

1  MO.— Springfield,    City    of,    v.  delphia,  City  of,  195  Pa.  St.  168,  78 

Plummer,   85    Mo.   App.    515,   531;  Am.    St.    Rep.    801,    45    Atl.    657. 

State  ex  rel.  Kane  v.  Johnson  TENN. — Boles  v.  Smith,  37  Tenn. 

(Mo.),    25    S.    W.    855.      N.    H.—  (5  Sneed)   105,  107.    TEX.— Hodde 

Wheeler  v.  Towns,  43   N.   H.   56;  v.  Susan,  58  Tex.  389,  393;   Haney 

Hunt  V.  Haven,  52  N.  H.  162,  169.  v.   Brown    (Tex.),   46    S.   W.   55. 

N.    J.  —  CuUen    v.    Wolverton,    65  FED.— Robbins  v.  Chicago,  City  of, 

N.  J.  L.  279,  47  Atl.  626.    N.  Y.—  71   U.   S.    (4   Wall.)    657,   672,   18 

Ash  ton    V.    Rochester,    City    of,  L.    Ed.  427;    Green   v.   Bogue,   158 

133  N.  Y.  187,  28  Am.  St.  Rep.  619,  U.  S.  478,  39   L.  Ed.  1061,  15  Sup. 

30    N.    E.    9  6  5,    31    N.     E.    334.  Ct.    975;    Theller    v.    Hershey,    89 

PA.— Bealar  v.  Hohn,  132  Pa.   St.  Fed.  575;  United  States  v.  Hender- 

242,   19  Atl.  74;    Walker  v.  Phila-  long,    102    Fed.    2,    4.      E  N  G.— 

779 


§576  CODE   PLEADING  AND   PRACTICE.  [Pt.  IK, 

are  instituted.  A  corporation  may  be  a  party  as  well  as 
a  natural  person.^  In  courts  of  original  jurisdiction,  the 
former  are  called  plaintiffs,  and  the  latter  defendants. 
In  appellate  courts  they  are  kno^v^l  as  appellant  and 
appellee  or  respondent;  in  courts  of  error,  in  some  juris- 
dictions, as  plaintiff  in  error,  and  defendant  in  error. 
The  words  ''party  to  an  action"  include  all  who  are 
plaintiffs  on  one  side  and  all  who  are  defendants  on  the 
other  side,  either  in  the  court  of  first  instance  or  on 
appeal;  so  that  a  statute  providing  that  the  court  shall 
give  judgment  for  * '  either  party, ' '  means  either  the  plain- 
tiff or  the  defendant,  and  includes  all  the  persons  who  are 
plaintiffs,  or  all  the  persons  w^ho  are  defendants, — in- 
cludes all  the  persons  belonging  to  the  particular  class. ^ 

<§  576.  Who  aee  not  paeties.  AVliile  any  one  hav- 
ing or  claiming  an  interest  in  the  subject-matter  of  an 
action  is  entitled  to  be  made  a  party  to  an  action  or  pro- 
ceeding instituted  for  the  purpose  of  enforcing  some  right 
or  redressing  some  wrong  against  the  person  or  persons 
proceeded  against;  and  interest,  or  the  claim  of  an  inter- 
est, is  the  test  of  the  right  to  be  or  to  be  made  a  party.^ 
Yet,  technically  speaking,  a  person  is  not  a  party  to  an 
action  unless  formally  made  such,  however  deeply  he  may 
be  interested  in  the  issues  or  however  affected  by  the 
decision  or  judgment.  Thus,  a  person  for  whose  benefit 
a  suit  is  brought  is  not  a  party  to  the  action,  although 
he  is  the  only  person  whose  interests  or  rights  are  in- 
volved, although  he  might  with  propriety  be  made  a 
party;-  he  has  no  control  over  the  proceedings  in  the 

Duchy  of  Kingston,  In  re,  20  How.  3  Sheldon  v.   Q  u  i  n  1  e  n,   5  Hill 

St.  Tr.  538.  (N.  Y.)  441,  443. 

1'  South   Carolina  R.   Co.  v.   Mc-  i  Hughes  v.  Jones,  116  N.  Y.  67, 

Donald,   5   Ga.    531,   535;    Citizens'  15  Am.  St.  Rep.  386,  5  L.  R.  A.  632, 

Street  R.  Co.  v.  Shepherd.  29  Ind.  22  N.  E.  446. 

App.   412,   59  N.   E.   349,  62   N.   E.  2  Jamison   v,   Kelly,   4   Ky.    (1 

300.  Bibb)   479. 

780 


Ch.  I.]  PARTIES — LEGAL  AND  EQUITABLE  ACTIONS.      §§  577-579 

action,  no  right  to  adduce  or  cross-examine  witnesses,  or 
to  appeal  from  the  decision  or  judgment. 

§  577.  Who  may  not  be  parties.  It  is  only  per- 
sons having,  or  claiming  to  have,  an  interest  in  the  subject- 
matter  of  the  action,  either  as  plaintiff  or  defendant,  who 
are  entitled  to  be  made  parties  to  a  suit.^  And  in  what- 
ever capacities  a  person  may  act  he  can  never  maintain 
an  action  against  himself,  either  as  debtor  or  tort-feasor.^ 

§  578.  In  legal  actions.  The  rules  laid  down  in  the 
preceding  sections  apply,  alike,  to  actions  under  the 
common-law  system  of  judicature  and  under  the  reformed 
system  of  judicature  with  procedural  codes ;  but  the  mode 
by  which  the  interest  which  makes  one  a  proper  or  neces- 
sary party  is  determined  is  very  different.  In  an  action 
at  law,  under  the  old  system,  the  plaintiff  must  be  a  per- 
son in  whom  is  vested  the  whole  legal  right  or  title;  and 
if  there  were  more  than  one,  they  must  all  be  equally 
entitled  to  the  recovery ;  that  is,  the  right  must  dwell  in 
them  all  as  a  unit,  and  the  judgment  must  be  in  their 
favor  equally,  and  the  defendants  must  be  equally  subject 
to  the  common  liability,  and  judgment  must  be  rendered 
against  them  all  in  a  body.  The  necessity  of  joining  all 
as  plaintiffs  in  whom  w^as  vested  the  whole  legal  title,  was 
imperative ;  but  in  certain  cases  the  plaintiff  had  the  right 
to  elect  whether  he  would  sue  all  who  were  liable;  yet 
wherever  judgment  passed  against  two  or  more  defen- 
dants, it  was  necessarily  joint. 

§  579.  In  suits  in  equity.  Under  the  former  system  of 
judicature,  the  suit  in  equity  was  not  hampered  by  the 
arbitrary  requirements  set  out  in  the  preceding  section. 
Its  form  was  controlled  by  two  general  and  natural  prin- 

1  See  Hughes  v.  Jones,  116  N.  Y.  Phillips  v.  Phillips,  18  Mont.  305, 

07,  15  Am.  St.  Rep.  386,  5  L.  R.  A.  309,  45  Pac.  221;  Blaisdel  v.  Ladd,' 

632,  22  N.  E.  446.  14  N.  H.  129;  Methodist  Episcopal 

1'  Byrne  v.  Byrne,  94  Cal.  576,  29  Church    Trustees    v.    Stewart,    27 

Pac.  1115,  30  Pac.  196;  Eastman  v.  Barb.   (N.  Y.)   553. 
Wright,   23    Mass.    (6   Pick.)    316;  See,  also,  post,  §632. 

781 


§§  580,  581       CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

ciples:  (1)  That  it  should  be  prosecuted  by  the  party 
beneficially  interested,  instead  of  the  party  who  had  the 
apparent  legal  right,  and  with  him  might  be  joined  all 
others  who  had  an  interest  in  the  subject-matter,  and  in 
obtaining  the  relief  demanded;  and  (2)  that  all  persons, 
whose  presence  was  necessary  to  a  complete  determina- 
tion and  settlement  of  the  questions  involved,  should  be 
parties  plaintiff  or  defendant,  so  that  all  their  rights  and 
interests,  whether  joint  or  several,  or  however  varied  as 
to  importance  or  extent,  might  be  determined  and  ad- 
justed by  the  court.  It  was  not  necessary  that  the  decree 
should  pass  in  favor  of  all  the  plaintiffs  for  the  same 
right  or  interest,  nor  against  all  the  defendants,  enforc- 
ing the  same  obligation.  Relief  could  be  granted  the 
defendant,  or  one  of  several  defendants,  against  the 
plaintiffs,  or  against  the  other  defendants.  Under  the 
former  system  of  judicature,  pleadings  in  equity  were 
based  upon  the  civil  law,  from  which  the  doctrine  of 
equity  was  derived.  The  early  chancellors  in  England 
were  generally  dignitaries  of  the  church,  and  for  that 
reason  were  necessarily  familiar  with  the  civil  law, — the 
law  of  the  Roman  Catholic  Church.^ 

§  580.  Peocedural  codes  adopt  doctrine  of  equity. 
The  procedural  codes  in  those  jurisdictions  having  the 
reformed  judicature,  while  diff"ering  somewhat  in  the 
details  of  their  provisions,  agree  substantially  in  adopt- 
ing the  rules  observed  by  courts  of  equity  in  regard  to 
jDarties  in  the  two  features  above  named.  ^ 

<§,  581.  Cause  of  action  and  what  it  includes.  We 
have  already  discussed  the  phrase  ''cause  of  action," 
given  its  definition  and  pointed  out  its  nature  and  ele- 
ments.^ It  remains  but  to  add  here  that  in  every  case 
there  must  be  a  ''cause  of  action";  that  is,  a  right  on  the 

1  See  MaxweU's  Code  Pleading,  i  Pomeroy's   Remedies   and 

p.  3.  Remedial  Rights,  §§  196-200. 

1  See,  ante,  §  5. 
782 


ch.  I.]  CAUSE  OF  ACTION  INCLUDES  WHAT.  §  581 

part  of  one  person,  the  plaintiff,  combined  with  a  viola- 
tion or  infringement  of  that  right  by  another  person,  the 
defendant.  The  common,  every-day  use  of  the  expression, 
''cause  of  action,"  includes  in  its  meaning  all  the  facts 
which  together  constitute  the  action,  and,  therefore,  we 
can  not  conceive  of  a  cause  of  action  apart  from  the  per- 
son who  alone  has  the  right  to  maintain  it.^  As  Mr.  Pom- 
eroy  expresses  it  perspicuously  and  at  length,  ''every 
action  is  brought  in  order  to  obtain  some  particular  re- 
sult which  we  call  the  remedy,  which  the  Code  calls  the 
'relief,'  and  which,  when  granted,  is  summed  up  or  em- 
bodied in  the  judgment  of  the  court.  This  result  is  not 
the  '  cause  of  action, '  as  that  term  is  used  in  the  Codes.  It 
is  true  this  final  result,  or  rather  the  desire  of  obtaining 
it,  is  the  primary  motive  which  acts  upon  the  will  of  the 
plaintiff,  and  impels  him  to  commence  the  proceeding, 
and  in  the  metaphysical  sense  it  can  properly  be  called 
the  cause  of  this  action ;  but  it  is  certainly  not  so  in  the 
legal  sense  of  the  phrase.  This  final  result  is  the  'object 
of  the  action,'  as  that  term  is  frequently  used  in  the 
Codes  and  in  modern  legal  terminology.  It  was  shown 
.  .  .  that  every  remedial  right  arises  out  of  an  ante- 
c('(lent  primary  right  and  corresponding  duty,  and  a 
delict  or  breach  of  such  primary  right  and  duty  by  the 
person  on  whom  the  duty  rests.  Every  judicial  action 
must,  therefore,  involve  the  following  elements :  A  pri- 
mary right  possessed  by  the  plaintiff,  and  a  correspond- 
ing primary  duty  devolving  upon  the  defendant ;  a  delict 
or  wrong  done  by  the  defendant,  which  consisted  in  a 
breach  of  such  primary  right  and  duty ;  a  remedial  right 
in  favor  of  the  plaintiff,  and  a  remedial  duty  resting  on 

2  A  cause  of  action  is  said  to  be  Contract  violated,  whether  such 
composed  of  the  right  of  the  plain-  contract  be  express  or  implied,  a 
tiff  and  the  obligation,  duty  or  cause  of  action  at  once  accrues, 
wrong  of  the  defendant.  These  And  the  same  is  true  of  torts  con- 
combined,  constitute  the  cause  of  stituting  a  trespass  upon  person 
action. — Veeder  v.  Baker,  83  N.  Y.  or  property. — People  v.  Cramer,  15 
156,  160.  Colo.  155,  25  Pac  302. 

783 


§  582  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

the  defendant,  springing  from  this  delict,  and  finally  the 
remedy  or  relief  itself.  Every  action,  however  compli- 
cated or  however  simple,  must  contain  these  essential  ele- 
ments. Of  these  elements  the  primary  right  and  duty 
and  the  delict  or  wrong  combined  constitute  the  cause  of 
action  in  the  legal  sense  of  the  term,  and  as  it  is  used 
ill  the  Codes  of  the  several  states."^ 

§  582.  Actions  ex  contractu  and  ex  delicto.  In  treat- 
ing of  the  Election  of  Remedies  and  the  necessity  there- 
for, actions  ex  contractu  and  ex  delicto  are  discussed  in 
that  relation  ;^  it  remains  here  but  to  add  that  the  right 
which  is  violated  or  is  infringed  may  be  one  which  is 
created  by  a  contract  or  agreement,  express  or  implied, 
or  it  may  be  a  natural  right,  or  one  which  exists  in  favor 
of  the  plaintiff  as  against  every  other  person  indepen- 
dently of  any  contract  or  agreement;  and  hence,  thougli 
Codes  prescribe  but  one  form  of  action,  yet  the  right 
which  underlies  and  forms  the  basis  of  the  cause  of 
action,  naturally  divides  civil  actions  into  two  primary 
classes  or  divisions,  viz. :  actions  ex  contractu,  for  the 
violation  of  contract  rights,  and  actions  ex  delicto,  for 
the  violation  of  natural  rights, ^ 

Illustration.  Thus,  in  the  case  of  a  written  contract, 
wherein  A  agrees  to  sell  and  deliver  certain  goods  to  B, 
and  B  agrees  to  pay  A  a  certain  price,  at  a  time  named, 
therefor,  a  relation  is  established  at  once  between  the 
j)arties,  and  the  contract  itself  discloses,  in  the  light  of 
the  facts  constituting  the  breach,  who  the  party  is  who 
is  entitled  to  maintain  an  action  therefor,  and  against 
whom  it  must  be  brought.  The  right,  as  well  as  the  lia- 
bility, is  fixed  by  the  contract,  and  can  not  exist  inde- 

:5  Pomeroy's    Remedies   and  v.  Smith,  30  Minn.  399,  16  N.  W. 

and  Remedial  Rights,  §  453.  462;    Sumner    v.    Rogers,    90    Mo. 

1  See,   ante,    §  565.  324,  2  S.  W.  476;  Junker  v.  Forbes, 

2  As  to  distinction   between  ac-  35  Fed.  84. 

lions  ex  contractu  and  ex  delicto.  See,  also,  authorities  cited,  ante, 

see  Minneapolis  Harvester  Works      §  565. 

784 


Ch.  I.]  EX  CONTRACTU  AND  EX  DELICTO  ACTIONS.  •§  582 

pendently  of  it.  But  in  case  of  a  tort,  as  if  A  wrongfully 
imprisons  B,  the  right  of  B  to  his  personal  liberty  exists 
against  all  the  world ;  but  the  right  ha\dng  been  violated 
only  by  A,  he  alone  is  liable  to  an  action  therefor.  This 
right  of  personal  liberty  is  absolute ;  it  constantly  exists, 
and  does  not  depend  upon  any  contract  or  other  relation 
of  the  parties  formed  by  themselves,  while  in  the  other 
case  the  right  is  created  by  the  parties,  and  can  not  exist 
without  it.  Upon  this  difference  depends  the  distinction 
between  actions  on  contract  and  actions  for  tort. 

Distinction  fundamental  and  also  lies  at  the  founda- 
tion of  the  rule  that,  independently  of  a  statute  authoriz- 
ing it,  a  right  of  action  for  a  tort  could  not  be  assigned ; 
whilst  a  contract,  or  right  based  upon  a  contract,  could, 
at  least  so  far  as  to  vest  the  beneficial  interest  in  the 
assignee,  it  being  considered  that  a  natural  right,  one 
which  the  party  could  not  create,  he  could  not  transfer. 
It  is  not  our  purpose,  however,  to  discuss  in  this  connec- 
tion the  several  kinds  of  contracts  classed  as  negotiable 
and  non-negotiable,  nor  the  different  kinds  of  torts  as 
affecting  the  person  or  property,  and  the  distinction  to  be 
taken  between  them.^ 

8  See  Pomeroy's  Remedies  and  Remedial  Rights,  §  110. 


I  Code  PI.  and  Pr.— 50 


785 


CHAPTER  n. 

PARTIES  PLAINTIFF REAL.  PARTY  IN  INTEREST. 

§  583.  Code  provision. 

§  584.  Assignment  of  claim. 

§  585,  Court  construction — Keason  assigned. 

§  586.  Who  is  real  party  in  interest. 

§  587.  When  promise  is  for  benefit  of  third  person. 

§  583.  Code  provision.  The  California  Code  of  Civil 
Procedure  requires  that  every  action  must  be  prosecuted 
in  the  name  of  the  real  party  in  interest,^  and  similar 
provisions  are  found  in  all  the  procedural  codes,  with 
the  exception  of  that  of  Georgia.  To  this  general  rule 
each  of  the  procedural  codes  names  certain  exceptions, 
which  will  be  hereafter  noticed.  This  general  code- 
pro\ision  applies  to  all  actions,  whether  founded  upon  a 
tort  or  upon  a  contract,  and  the  defendant  has  a  statutory 
right  to  have  a  cause  of  action  against  him  prosecuted 
by  the  real  person  in  interest.^ 

<^  584.    Assignment  of  claim.  The  California  Code 

of  Civil  Procedure  provides, — and  a  similar  provision  is 
found  in  most  if  not  all  of  the  other  procedural  codes, — 
that  in  case  of  an  assignment  of  the  thing  in  action,  an 
action  by  the  assignee  is  without  prejudice  to  any  set-off 
or  other  defense  existing  at  the  time  of,  or  before,  notice 
of  the  assignment ;  except  in  the  case  of  a  note  or  bill  of 
exchange,  transferred  in  good  faith,  and  upon  good  con- 
sideration, before  maturity.^ 

''Assignment  of  a  thing  in  action/'  as  used  in  the 
above  section  of  the  code,  and  in  all  similar  provisions 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  Proc,  §  367. 

2  Giselman  v.  Starr,  106  Cal.  657,  40  Pac.  g. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  Proc,  §  368, 

786 


ch.  II.]  "assignment  of  thing  in  action.'*  §  581 

in  other  procedural  codes,  connote  and  include  an  actual 
and  bona  fide  ''transfer  of  interest"  by  the  owner  to 
another ;-  an  actual  ' '  conveyance ' '  of  all  rights  and  title 
and  interest  in  and  to  the  ''thing  in  action";^  the  "vest- 
ing in  another"  of  all  the  right  and  title  and  interest  or 
estate  therein.^  In  other  words,  "assignment"  means 
just  what  it  says,  using  that  word  in  its  legal  and  tech- 
nical sense ;  is  a  contract  whereby  the  owner  of  the  thing 
in  action  divests  himself  of  all  interest  and  right  and 
title  therein,  and  of  all  right  to  receive  or  derive  any 
further  or  future  benefit  therefrom,  and  vests  all  the 
interest  and  right  and  title,  including  the  right  to  the 
money  on  the  payment  or  enforcement  of  the  same,  for  a 
valuable  consideration,^  or  as  a  gift  or  donation.  If  the 
owner  still  retains  an  interest  in  the  "thing  in  action, "° 
and  has  the  right  to  receive  the  money  arising  from  the 
enforcement  thereof  by  an  action  at  law  or  a  suit  in 
equity,  on  execution  or  otherwise,  the  transaction  is  in 
no  legal  sense  an  "assignment,"  as  that  word  is  used  in 
procedural  codes.  A  transfer,  either  with  or  without 
endorsement,  without  consideration,  and  merely  for  the 
purpose  of  having  an  action  instituted  and  prosecuted  in 

2  Hoag  V.  Mendenhall,  19  Minn.  a  "real  party  in  interest,"  and  in 
335;  Hight  v.  Sockett,  34  N.  Y.  a  suit  on  the  judgment  should  be 
447;  Andrews  v.  National  Bank  of  a  party  plaintiff.  If  the  complaint 
North  America,  7  Hun  (N.  Y.)  20.  simply  sets  out  an  assignment  of 

3  See  Wilson  v.  Beadle,  39  Tenn.  the  judgment,  on  the  coming  in  of 
(2  Head)  510,  513.  evidence  showing  that,  as  a  matter 

4  Brown  v.  Crookston  Agricul-  of  fact  and  of  law,  but  one-half  of 
tural  Assoc,  34  Minn.  545,  26  N.W.  the  judgment  was  assigned,  the 
907;  Harlowe  v.  Hudgins,  84  Tex.  cause  should  be  dismissed  or  a 
107,  31  Am.  St.  Rep.  21,  19  S.  W.  continuance  ordered  and  the  judg- 
364.  ment    creditor   ordered    to    be 

5  See  Commercial  Bank  v.  Rufe,  brought  in.  I  am  aware  that  the 
92  Fed.  789,  795.  California  Supreme  Court  did  not 

c  Where  a  suitor  assigns  a  judg-  so  hold  in  the  case  of  Cobb  v. 
ment  to  his  attorneys  as  security  Doggett,  142  Cal.  144,  75  Pac.  785, 
for  their  fees,  retaining  the  right  but  that  case  is  open  to  serious 
to  receive  one-half  of  the  proceeds  criticism,  as  pointed  out  in  the 
thereof,  less  costs,  he  still  remains      next  section. 

787 


§  i)S5  CODE  PLEADING  AND  PRACTICE.  [Pt.  IIT, 

the  name  of  another,  and  enforcing  the  thing  in  action 
by  a  judgment  and  execution,  retaining  the  right  to 
receive  the  proceeds  of  such  judgment  and  execution,  not 
being  in  any  proper  and  legal  sense  an  "assignment," 
does  not  make  the  party  to  whom  the  pretended  transfer 
is  made  and  in  whose  name  the  action  is  instituted  the 
**real  party  in  interest"  and  entitled  to  maintain  an 
action  thereon  under  the  code  provision ;  and  to  hold  that 
such  camouflage  of  a  simulated  transfer  does  confer  that 
right  is  not  only  to  do  violence  to  the  clear  and  explicit 
language  of  the  code,  but  is  also,  in  many  instances,  a 
judicial  violation  of,  and  evasion  of,  that  other  provision 
of  the  code  requiring  nonresident  plaintiffs  and  foreign 
corporations  to  give  security  for  costs  ;'^  accomplishes  no 
useful  purpose  in  judicature,  but  does  enable  the  owners 
of  'things  in  action,"  in  some  instances,  to  escape  their 
legal  obligations,  and  promotes  the  interests  of  collec- 
tion agencies. 

§  585.    Court    construction  —  Reason    assigned. 

A  construction  at  variance  with  wdiat  is  said  in  the  pre- 
ceding section,  is  placed  upon  the  provision  of  the  pro- 
cedural codes,  requiring  the  action  to  be  brought  and 
prosecuted  in  the  name  of  the  real  party  in  interest,  has 
been  placed  upon  those  provisions  by  the  courts  of  Cali- 
fornia,^ Idaho,-  North  Dakota,^  Oregon,^  and  perhaps  in 
other  jurisdictions ;  but  that  does  not  change  the  facts  in 

7  Ken's    Cyc.    Cal.    Code    C  i  v.      Walsch,  154  Cal.  108,  110,  97  Pac. 
Proc,  §  103G.  ''O;    Russ  v.  Tuttle,   158  Cal.  226, 

1  See  Giselman  v.  Starr,  106  Cal.      ^31,  110  Pac.  814. 

2  Craig  V.  Palo  Alto  Stock  Farm, 
16  Idaho  701,  706,  102  Pac.  393. 

3  Seybold   v.    Grand   Forks   Nat 
Pac.  402;  Iowa  &  California  Land      ^^^^^  ^  ^_  ^    ^^^^  ^g^^  g^  ^.    ^^ 

Co.  V.  Hoag,  132  Cal.  627,  630,  64  532 .  American  Soda  Fountain  Co. 

Pac.    1073;    Dyer    v.    Sebrell.    136  y    Hogue,    17    N.    D.    375,    378,    17 

Cal.  597,  588,  67  Pac.  1036;.  Cobb  l.   R.  A.    (N.  S.)   1116,  116  N.  W. 

V.   Doggett,    142    Cal.    142,    144,    75  339. 

Pac.  785;  Meyer  v.  Foster,  147  Cal.  -i  Sturges  v.  Baker,  43  Ore.  236, 

166,   168.   81   Pac.   402;    Tonchy   v.  241,  72  Pac.  744. 

788 


651,  657,   40  Pac.  8;    Philbrook  v. 
Superior  Court,  111  Cal.  31,  34,  43 


ell    II.]  COURT  CONSTRUCTION  OF  "ASSIGNMENT."  §  585 

the  case;  the  construction  is  unwarranted  by  the  code 
provisions  themselves  or  by  any  common-law  or  statutory 
rule  of  construction;  has  too  much  of  the  air  of  ''special 
pleading,"  and  can  but  be  regarded  as  ''judicial  legisla- 
tion," and  not  an  enforcement  of  either  the  letter  or  spirit 
of  the  statute.  A  reason  for  placing  this  construction  upon 
the  code  provision  has  been  given  as  follows:  "The 
defendant  has  a  statutory  right  to  have  a  cause  of  action 
against  him  prosecuted  by  the  real  party  in  interest,'' 
and  it  was  in  this  exercise  of  that  right  that  he  pleaded 
lack  of  title  in  the  plaintiffs  and  asked  to  have  deter- 
mined the  conflicting  claims  of  those  whom  he  asserted 
to  be  the  owners.  But  the  purpose  of  the  statute  is 
readily  discernible,  and  the  right  is  limited  to  its  pur- 
pose. It  is  to  save  the  defendant,  against  whom  judg- 
ment may  be  obtained,  from  further  harassment  and 
vexation  at  the  hands  of  other  claimants  to  the  same 
demand.  It  is  to  prevent  a  claimant  from  making  a 
simulated  transfer,  and  thus  defeating  any  just  counter- 
claim or  set-off  which  defendant  would  have  to  the  de- 
mand pressed  by  the  real  owner.  But  where  the  plaintiff' 
showed  such  a  title  as  that  a  judgment  upon  it  satisfied 
by  the  defendant  will  protect  him  from  further  annoy- 
ance or  loss,  and  where,  as  against  the  party  suing,  de- 
fendant can  urge  any  defense  he  could  make  against  the 
real  owner,  then  there  is  an  end  of  the  defendant's  con- 
cern and  with  it  of  his  right  to  object.  "'^  Every  man  has 
a  right  and  interest  to  have  the  laws  enforced  in  the 
letter  and  spirit.  Other  decisions  show  a  like  disposition 
to  depart  from  the  letter  and  spirit  of  the  code  provision." 

5  Citing  Code   Civ.   Proc,   §  307,  111   Cal.   31,   34.   43   Pac.   402.  and 

instead   of   §  367.  Dyer  v.  Sebrell,  135  Cal.  597,  598, 

e  Giselman  v.  Starr,  106  Cal.  651,  67  Pac.  1036  (holding  that  a  cashier 
657,  40  Pac.  8.  See  one  language  may  maintain  an  action  on  a  note 
in  Philbrook  v.  Superior  Court,  111  in  which  the  real  party  in  interest 
Cal.  31,  34,  43  Pac.  402,  and  other  was  the  bank,  and  that  the  "plain- 
cases,  tiff's    prima   facie   title    from    pos- 

7  Philbrook    v.    Superior    Court,  session  may  not  be  rebutted  by  the 

789 


§585 


CODE   PLEADING   AND    PRACTICE. 


[Pt.III, 


Construction  not  favored  in  many  other  jurisdictions. 
Thus,  the  Kansas  procedural  code  has  a  provision  sub- 
stantially the  same  as  the  provision  in  the  California 
procedural  code,  requiring  all  actions  to  be  prosecuted  in 
the  name  of  the  real  party  in  interest;  and  the  Kansas 
Supreme  Court  has  declared  that  a  person  holding  by 
written  assignment  a  verified,  itemized  account  is  not  the 
real  party  in  interest,  and  can  not  maintain  an  action 
thereon  in  his  own  name,  where  it  is  shown  that  by  a  con- 
temporaneous oral  agreement  he  had  agreed  to  pay  the 
full  amount  thereof,  when  collected,  to  his  assignor  f  and 
this  is  the  rule  even  where  the  assignor,  on  the  trial,  testi- 
fied that  the  defendant  in  the  action  did  not  owe  him  any- 
thing, and  that  the  whole  amount  is  due  him  from  the 
plaintiff,  and  that  he  is  to  pay  him  provided  he  recovers  in 
the  action.^   Following  this  construction  of  the  code  the 


debtor  by  evidence  that  the  title 
is  in  some  other  party") ;  Cobb  v. 
Doggett,  142  Cal.  142,  144,  75  Pac. 
785  (assignment  for  a  valuable 
consideration,  of  a  judgment,  re- 
serving a  one-half  interest  in  the 
proceeds,  after  deducting  costs 
therefrom.  This  was  in  effect  an 
"assignment"  of  but  a  one-half 
interest  in  the  judgment;  and 
under  a  proper  interpretation  of 
the  code  section  the  assignor  was 
a  necessary  "real  party"  plaintiff 
to  a  suit  on  the  judgment  as  a 
real  party  in  interest) ;  Meyer  v. 
Foster,  147  Cal.  166,  168,  81  Pac. 
402,  "the  facts,  also  disclosed,  that 
the  purpose  of  such  transfer  was 
to  enable  the  respective  trans- 
ferees to  collect  the  note  for  the 
benefit  of  Collins,  or  some  other 
person,  does  not  destroy  the  effect 
of  the  transfer.  It  was  lawful  to 
transfer  the  title  for  the  purpose, 
and  the  person  thus  receiving  title 


could  maintain  an  action  on  the 
note  in  his  own  name" — although 
not  he  but  Collins  "or  some  othei 
person"  was  the  "real  owner,"  and 
the  code  says  the  suit  must  be 
maintained  by  the  "real  owner 
party  in  interest." 

s  Stewart  v.  Price,  64  Kan.  191, 
64  L.  R.  A.  581,  67  Pac.  553,  over- 
ruling Krapp  V.  Eldridge,  33  Kan. 
106,  5  Pac.  372.  The  same  doc- 
trine is  held  in  Swift  v.  Ellsworth, 
10  Ind.  205,  71  Am.  Dec.  316;  Bost- 
wick  V.  Bryant,  113  Ind.  448,  459, 
16  N.  E.  478,  483;  Mills  v.  Murry. 
1  Neb.  327;  Hoagland  v.  Van 
Elten,  22  Neb.  681,  684,  35  N.  W. 
869,  870,  23  Neb.  462,  36  N.  W. 
755;  Kinsella  v.  Sharp,  47  Neb. 
664,  66  N.  W.  634;  Eaton  v.  Alger, 
57  Barb.  (N.  Y.)  179,  189;  affirmed, 
47  N.  Y.  345  (fine  presentation  of 
whole  question,  though  not  now 
the  law  of  that  state). 

9  Stewart  v.  Price,  64  Kan.  191, 
64  L.  R.  A.  581,  67  Pac.  553, 
790 


eh.  II.]  REAL  PARTY  IX  INTEREST — WHO  IS.  §  oS6 

same  court  lias  held  that  there  can  be  no  recovery  by  a 
person  who  is  the  holder  of  a  note,  and  has  prima  facie 
title  thereto,  on  the  showing  that  he  is  not  the  real  owner 
thereof,^®  although  this  holding  was  modified  by  allow- 
ing one  holding  the  legal  title  to  maintain  an  action  in 
his  own  name.^^    See,  however,  discussion  in  next  section. 

§  586.  Who  is  real,  party  in  interest.  The  real  party 
in  interest  in  *^a  thing  in  action,"  is  the  person  who  is 
to  derive  the  substantial  or  monetary  benefit  therefrom.^ 
The  camouflage  of  a  ''simulated  transfer"  can  not  make 
the  tranferee  the  real  party  in  interest — with  all  due 
respect  to  the  decisions  which,  under  a  forced  construc- 
tion, hold  otherwise.  It  is  simply  a  correct  interpretation 
of  plain  Anglo-Saxon  words.  Under  the  reformed  pro- 
cedural codes  the  rule  is — or  rightly  interpreted  is — the 
same  in  this  regard  as  it  was  before  the  coming  of  these 
codes,  when  actions  upon  contracts  were  required  in  the 
name  of  the  party  in  whom  the  legal  interest  was  vested, 
or  when  the  interest  was  injuriously  affected,  by  the  real 
party  in  interest;  and  the  legal  interest  was  held  to  be 
vested  in  him  to  whom  the  promise  was  made,  and  from 
whom  the  consideration  passed.  Thus,  in  an  action  for 
breach  of  contract,  where  no  other  person  has  acquired 
an  interest  in  the  matter  in  dispute,  only  the  parties  to 
the  contract  sued  on  should  be  made  parties  to  the  suit.^ 

But  the  party  in  whom  the  legal  interest  is  vested  is 
not  always  the  real  party  in  interest.  **The  real  party 
in  interest"  is  the  party  who  would  be  benefited  or  in- 
jured by  the  judgment  in  the  cause.  The  interest  which 
warrants  making  a  person  a  party  is  not  an  interest  in 
the  question  involved  merely,  but  some  interest  in   the 

10  Cleary  v.  Logan,  66  Kan.  799,  52;  Bailey  v.  Fredonia  CJas  Co.,  82 
72  Pac.  1098.  Kan.  746,  751,  109  Pac.  411. 

11  See  Manley  v.  Park,  68  Kan.  i  As  to  who  is  real  party  in  in- 
400,  1   Ann.  Cas.  832,   66   L.    R.  A.  terest,  see  note  64  L.  R.  A.  581-624. 
970,  75  Pac.  557;   Rullman  v.  Riill-          :;  Borlin  v.  Cazalis,  30  Cal.  92. 
man,    81    Kan.    521,   523,    106    Pac. 

791 


§  58G  CODE    PLEADING   AND   PRACTICE.  [Pt.  Ill, 

subject-matter  of  litigation.^  The  rule  should  be  re- 
stricted to  parties  whose  interests  are  in  issue,  and  are 
to  be  affected  by  the  decree.'*  The  interest  of  the  plain- 
tiff must  be  connected  with  the  subject-matter  of  the 
action  upon  which  the  defendant  is  liable,  though  it  is 
not  necessary  that  he  should  be  connected  with  it  by  a 
legal  title.  Hence,  in  actions  ex  contractu,  the  parties 
must  stand  related  to  the  contract  which  forms  the  basis 
of  the  action. 

Even  equity  will  not  make  a  defendant  liable,  upon  a 
contract,  to  a  plaintiff  who  is  neither  a  party  to  the  con- 
tract, nor  the  legal  or  equitable  owner  of  the  contract 
right  to  the  subject-matter  of  the  suit,  nor  the  legal  rep- 
resentative of  such  owner.  For  example:  A  contracts 
with  B  to  sell  and  deliver  to  him  certain  goods.  B  sells 
the  same  goods  to  C  and  agrees  to  deliver  them  to  him 
in  the  same  manner  he  would  if  the  goods  were  already 
in  his  possession.  A  fails  to  deliver  them  to  B,  and  B, 
therefore,  can  not  deliver  them  to  C.  In  such  case  C  can 
not  maintain  an  action  against  A  for  the  nondelivery  of 
the  goods,  notwithstanding  B  would  have  delivered  to  C 
if  he  had  received  them ;  there  being  no  privity  between 
C  and  A,  that  is,  C  is  in  no  way  related  to  the  contract 
by  which  A  had  agreed  to  deliver  them ;  but  it  would  be 
otherwise  if  B  had  assigned  his  contract  with  A  to  C. 
Nor  would  it,  in  the  case  above  supposed,  be  any  defense 
to  an  action  brought  by  B  against  A  for  nondelivery, 
that  B  had  resold  the  goods  to  C,  and  that  C  did  not 
intend  to  sue  B  for  the  nondelivery.^     It  is  perfectly 

3  Valletta  v.  Whitewater  Valley  U.  S.  (13  Pet.)  359,  10  L.  Ed.  200; 
Canal  Co  4  McL.  192,  Fed.  Cas.  United  States  v.  Parrott.  1  McAll. 
No.  16820.'     See  Kerr  v.  Watts.  19      271,   Fed.   Cas.  No.   15998,   7   Morr. 

U.  S.  (6  Wheat.)  550,  5  L.  Ed.  328.       ^'"-  ^^P-  ^^^\      .  ^       ^ 

Real   party  in   interest  has  been 

4  Elmendorf  v.  Taylor,  23  U.  S.  discussed  in  preceding  sections  as 
(10  Wheat.)  152,  6  L.  Ed.  289;  ^.^g  party  entitled  to  the  avails  of 
Mechanics'  Bank  of  Alexandria  v.  the  suit.  See  §§  584  and  585  and 
Seton,    26    U.    S.    (1    Pet.)    299,    7      cases  cited. 

L.  Ed.  152;  Story  v.  Livingston,  38  5  Gunter  v.  Sanchez,  1  Cal.  50. 

792 


ell.  III.]  PROMISE  FOR  BENEFIT  OF  ANOTHER.  §  587 

apparent  that  these  two  executory  contracts  created  no 
relation  between  A  and  C,  nor  between  C  and  the  prop- 
erty, for  the  property  never  passed  from  A  because  of 
the  nondelivery. 

If,  however,  the  contract  between  A  and  B  had  vested 
the  property  in  B,  and  by  the  second  contract  the  same 
property  became  vested  in  C,  the  latter  might  maintain 
an  action  against  A  concerning  it ;  or,  if  the  goods  after 
tho  sale  to  B  had  remained  in  A's  hands  as  bailee,  he 
would  be  liable  to  an  action  by  C  for  the  nondelivery  of 
the  goods ;  but  in  that  case  the  bailment,  though  it  may 
have  been  created  by  the  terms  of  the  contract  between 
A  and  B,  is  in  fact  a  separate  contract  from  the  sale,  and 
imposes  the  duty  upon  A  of  delivering  the  goods  to  whom- 
soever may  be  the  owner  at  the  time  they  are  demanded, 
and  this  duty  is  the  synonym  of  an  implied  contract  to 
deliver  them  to  C,  he  having  become  the  owner ;  and  this 
implied  contract  must  be  the  basis  of  the  action  brought 
by  C.  In  such  action,  it  is  true,  it  may  be  necessary  to 
prove  both  contracts,  because  in  the  case  supposed  these 
contracts  show  the  facts  from  which  the  implied  contract 
arises,  viz.,  the  bailment  and  the  ownership. 

§  587.  When  pkomise  is  for  benefit  of  third  person. 
In  regard  to  actions  upon  promises  made  for  the  benefit 
of  third  persons,  there  has  been  much  conflict  in  the 
decisions  of  the  courts  of  the  different  states,  especially 
among  those  which  retain  the  common-law  system  of 
procedure,  as  to  the  right  of  such  third  person  to  main- 
tain an  action  against  the  promisor.  In  a  majority  of 
such  latter  states,  however,  the  doctrine  is  now  settled 
that  such  right  of  action  exists.  Thus,  in  a  recent  case 
in  New  Jersey,  the  court  said:'  ''The  doctrine  is  well 
settled  in  this  state  that  if,  by  a  contract  not  under  s(nil, 
one  person  makes  a  promise  to  another  for  the  benefit  of 

1  Price  V.  Trosdell,  28  N.  J.  Eq.  200. 

793 


587 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  in, 


a  third,  the  third  may  maintain  an  action  on  it,  thoug-li 
the  consideration  did  not  move  from  him."- 


2  Joslin  V.  New  Jersey  Car 
Spring  Co.,  36  N.  J.  L.  (7  Vr.)  141. 
The  facts  in  this  case  were:  The 
plaintiff  was  employed  as  foreman 
by  Fields  &  King,  manufacturers, 
at  a  salary  of  $2,000  a  year  from 
February  1,  1870,  to  October  31, 
1871,  at  which  last  date  the  de- 
fendants bought  Fields  &  King's 
stock  and  assets,  assumed  their 
liabilities,  and  carried  on  their 
business.  The  plaintiff  assented 
to  this  transfer  of  liability,  and 
continued  to  act  as  foreman  up  to 
January,  1872,  when  he  was  dis- 
charged. This  action  was  brought 
to  recover  from  the  defendants  his 
salary  from  February  1,  1870,  to 
January,  1872.  The  jury  returned 
a  verdict  in  his  favor,  and  on  a 
rule  to  show  cause  why  the  verdict 
should  not  be  set  aside,  it  was  held 
that  he  was  entitled  to  recover  his 
salary  for  the  whole  period.  The 
court  said:  "It  is  stated  in  some 
of  the  authorities  cited,  as  a  re- 
sult of  a  review  of  cases,  that  this 
is  now  well  settled  as  a  general 
rule.  It  must  be  borne  in  mind, 
however,  that  this  case  falls  within 
a  special  class  of  cases  where  the 
party  who  makes  the  promise  has 
received  from  the  party  to  whom 
the  promise  is  made,  money  or 
property,  from  or  out  of  which  he 
is  to  pay  creditors  of  the  second 
party.  See  M  e  11  e  n,  Adm'x  v. 
Whipple,  67  Mass.  (1  Gray)  317. 
And  in  this  class  of  cases  the  right 
of  the  creditor,  the  party  for 
whose  benefit  the  promise  was 
made,  to  recover  is,  we  think,  sus- 
tained by  the  weight  of  authority." 
See  Alien  v.  Thomas,  60  Ky.  (3 
Mete.)  198,  77  Am.  Dec.  169;   Sea- 


man V.  Whitney,  24  Wend.  (N.  Y.) 
260,  35  Am,  Dec.  618;  Burrows  v. 
Turner,  24  Wend.  (N.  Y.)  276,  35 
Am.  Dec.  622;  Baker  v.  Bucklin,  2 
Den.  (N.  Y.)  45,  43  Am.  Dec.  726; 
Baker  v.  Elgin,  11  Ore.  333,  8  Pac. 
280;  Chrisman  v.  State  Ins.  Co.,  16 
Ore.  289,  18  Pac.  466;  Empress 
Engineering  Co.,  In  re,  16  Ch.  Div. 
125,  1  Eng.  Rul.  Cas.  699;  Lloyd's 
V.  Harper,  16  Ch.  Div.  290,  1  Eng. 
Rul.  Cas.  686. 

See,  also,  notes  35  Am.  Dec,  621, 
624;  43  Am.  Dec.  739;  25  L,  R,  A. 
257;  1  Eng.  Rul.  Cas.  704. 

Neither  trover  ncr  action  for 
money  had  and  received  will  lie 
against  a  consignee  of  goods,  or  of 
money  received  for  a  third  party, 
with  instruction  to  deliver  to  such 
third  party,  until  the  consignee 
does  some  act  by  which  he  binds 
himself  to  such  third  party.  — 
Eichelberger  v.  Murdock,  10  Md. 
373,  69  Am.  Dec.  140;  Seaman  v. 
Whitney,  24  Wend.  (N.  Y.)  260, 
35  Am,  Dec.  618;  Bigelow  v.  Davis, 
16  Barb.  (N.  Y.)  561;  Strayham  v. 
Webb,  47  N.  C.  (2  Jones'  L.)  199, 
64  Am.  Dec.  580. 

See,  also,  notes  35  Am.  Dec.  621; 
64  Am,  Dec,  581. 

— Consignment  of  remittance  for 
account  of  another  remains  the 
property  of  the  consignor  or  re- 
mittor until  the  party  receiving  it 
has  done  some  act  recognizing  its 
appropriation  to  the  particular 
purpose,  and  until  the  third  party 
has  done  some  act  creating  a 
privity  between  such  third  party 
and  the  person  so  receiving. — 
Wilson  v.  Carson,  12  Md.  75. 

Dependent  child  or  other  rela- 
tive  for   whom   father   has   made 


794 


ell.  II.]  PROMISE  FOR  BENEFIT  OF  ANOTHER.  §  587 

The  action  of  assumpsit,  at  common  law,  could  not  be 
maintained  upon  such  promise,  unless  upon  the  tlieory 
that  there  was  an  implied  promise  to  the  creditor,  for  in 
that  form  of  action  the  plaintiff  is  obliged  to  aver  a 
promise  to  himself;  and  if  such  promise  may  be  implied, 
there  is  no  reason  for  confining  the  right  of  action  to  any 
class  of  cases  where  a  consideration  sufficient  to  support 
any  contract  between  strangers  has  passed  to  the  party 
making  the  promise.  If,  however,  the  action  is  brought 
in  *'case"  instead  of  assumpsit,  there  would  be  good 
grounds  for  the  distinction. 

Under  the  Code,  which  not  only  abolishes  the  distinc- 
tions between  actions  at  law  and  suits  in  equity,  but 
requires  that  every  action  shall  be  brought  in  the  name 
of  the  real  party  in  interest,  there  would  seem  to  be  little 
doubt  of  the  right  of  the  party  for  whose  benefit  the 
promise  was  made  to  maintain  the  action,  although  sucli 
promise  is  contained  in  a  writing  under  seal.  Nor  does 
this  conflict  with  the  rule  above  laid  down,  that  ''the 
plaintiff  must  stand  related  to  the  contract,  for  the  test 
is  not  the  legal  but  the  equitable  title,  right,  or  interest, 
and  that  interest  is  directly  created  by  the  contract.^" 

provision  in  his  own  name,  as  to  Person  with  whom  or  in  whose 
riglit  to  enforce  the  contract. —  name  contract  made  for  benefit  of 
Buchanan  v.  Tilden,  5  App.  Div.  another  may  maintain  an  action 
(N.  Y.)  354,  39  N.  Y.  Supp.  228.  thereon  in  his  own  name.— Rock- 
Promise  fo.'"  benefit  of  third  per-  well  v.  Holcomb,  3  Colo.  App.  1,  31 
son,  there  being  nothing  but  the  Pac.  944. 

promise,   no   consideration   from  3  Wiggins  v.  McDonald,  18  Cal. 

such  third  person,  and  no  duty  or  126;    Sacramento    Lumber    Co.    v. 

obligation  to  him  on  the  part  of  the  Wagner,  67  Cal.  293,  7  Pac.  705; 

promisee,    such   third    person    can  Malone  v.  Crescent  City  M.  &  T. 

not   enforce   the    promise. — Jeffer-  Co.,  77  Cal.  38,  18   Pac.  858. 

son  V.  Asch,  53  Minn.  446,  39  Am.  Subject   discussed    at    length    in 

St.   Rep.  618,  25   L.  R.  A.  257,  55  Pomeroy's   Remedial   Rights  and 

N.  W.  604.  Remedies,  §§  139  et  seq. 


795 


CHAPTEK  III. 

PAKTIES  PLAINTIFF IN  ACTIONS  EX  CONTRACTU. 

§  588.  Plaintiff's  relation  to  contract — How  may  arise. 

§  589.  Entire  cause  of  action  must  be  represented  by  plaintiff. 

§  590.  Bringing  in  new  parties. 

§  591.  Joinder  of  plaintiffs — In  general. 

§  592.  Death  or  refusal  to  join. 

§  593.  Community  of  interest — Test  of. 

§  594.  Married  woman  to  be  joined  with  husband — Excep- 
tions. 

§  595.  Numerous  parties. 

§  596.  Executors  and  administrators. 

§  597.  Holders  of  title  under  common  source. 

§  598.  Joint  owners  of  chattels. 

§  599.  Joint  tenants  and  tenants  in  common. 

§  600.  Mortgages  and  mechanics'  liens — Foreclosure. 

§  601.  Partners. 

§  602.  Persons  authorized  by  statute. 

§  603.  Principal  and  agent. 

§  604.  Promissory  notes — Plaintiffs  in  actions  on. 

§  605.  Quo  warranto — Usurpation  of  franchise. 

§  606.  Usurpation  of  office. 

§  607.  Sheriff— Action  by. 

§  608.  State  or  United  States — Actions  by. 

§  609.  Suits  against  fire  departments — In  California. 

§  610.  Sureties  as  plaintiffs. 

§611.  Trustees  of  an  express  trust — In  land:  Real  party  in 

interest. 

§  612.  In  "thing  in  action,"  etc:  Real  party  in  interest. 

§  588.  Plaintiff  's  relation  to  contract — How  may 
ARISE.  Before  a  person  can  maintain  an  action  on  a  con- 
tract he  must  be  a  party  thereto,  or  the  contract  must  be 
for  his  benefit.^     The  relation  to  the  contract  necessary 

1  See,  ante,  §  587. 

796 


ch.  III.]  plaintiff's  RELATION  TO  CONTRACT.  §589 

to  enable  one  to  maintain  an  action  upon  it  may  be  cre- 
ated in  many  different  ways:  (1)  By  the  contract  itself, 
as  in  the  case  of  the  original  parties  to  the  contract; 
(2)  by  transfer  or  assignment;  (3)  by  operation  of  law, — 
e.  g.,  in  the  case  of  executors  or  administrators  of  a 
deceased  party  to,  or  assignee  of,  a  contract;  (4)  by  aid 
of  the  law, — e.  g.,  in  case  of  attachment  or  garnishment 
of  debts  due,  or  property  in  possession;  but  in  most 
states  this  is  a  special  proceeding  in  aid  of  an  action 
pending;  or  for  the  enforcement  of  a  judgment  rendered. 
In  some  states, — as  in  Michigan, — although  a  suit  must 
first  be  commenced  against  the  principal  defendant  be- 
fore a  writ  of  garnishment  can  be  obtained  against  one 
indebted  to  him;  yet  the  affidavit  for  the  writ  and  the 
answer  of  the  garnishee  form  an  issue  between  them,  and 
the  case  is  docketed  and  tried  as  an  independent  suit, 
and  a  judgment  is  rendered  therein  for  or  against  the 
garnishee,  as  in  other  actions,  but  as  the  garnishee  of  the 
principal  debtor.  Although  the  plaintiff  in  this  proceed- 
ing is  subrogated  by  force  of  the  statute  to  the  rights 
of  the  defendant  in  the  principal  case,  yet  it  is  more 
analogous  to  process  of  attachment  against  the  principal 
debtor's  property,  by  which  a  lien  is  secured  upon  it  in 
advance  of  the  judgment,  since  judgment  can  not  be 
obtained  against  the  garnishee  until  the  plaintiff  has 
obtained  judgment  against  the  principal  defendant,  and 
the  moneys  obtained  by  the  proceeding  must  be  applied 
to  the  satisfaction  of  the  principal  judgment,  and  does 
not  otherwise  become  the  property  of  the  plaintiff. 

<^  589.  Entire  cause  of  action  must  be  represented  by 
PLAINTIFF.  To  enable  the  court  to  properly  determine  the 
issues  presented,  the  plaintiff  must  represent  the  entire 
cause  of  action,  or  causes  of  action,  where  more  than 
one  is  presented  by  the  complaint.  This  is  in  confonnity 
Avith  the  doctrine  which   prohibits   the  splitting  of  dc- 

797 


§590  CODE   PLEADING   AND    PRACTICE.  [Pi.  ITf, 

maiids,  whether  arising  out  of  contract^  or  out  of  tort.- 
Hence  it  follows  that  all  who  are  interested  in  the  cau.'.o 
of  action  must  be  made  parties  plaintiff,  unless  such  an 
one  be  dead  or  refuses  to  join  as  a  plaintiff.-^  If  they  are 
not  so  joined,  and  that  fact  appears  upon  the  face  of  tlio 
complaint,  the  complaint  is  subject  to  denmrrer  on  the 
ground  of  a  want  of  proper  and  necessary  parties  plain- 
tiff.^ The  word  ' '  represent, ' '  and  the  word  * '  interested ' ' 
are  herein  used  in  the  sense  in  which  they  are  used  in 
the  procedural  codes.  The  person  or  persons  who  "rej)- 
resent"  the  entire  course  of  action  must  be  the  ^'real 
party  in  interest,"  who  is  required  to  bring  and  main- 
tain the  suit.^ 

§  590.  Bringing  in  new  parties.  Under  the  Cali- 
fornia Code  of  Civil  Procedure  the  court  is  required  to 
determine  the  controversy  between  the  parties  where  this 
can  be  done  without  prejudice  to  the  rights  of  others,  or 
by  saving  their  rights;  but  when  a  complete  determina- 
tion of  the  controversy  can  not  be  had  without  the  pres- 
ence of  other  parties,  the  court  must  order  them  to  be 
brought  in,  and  to  that  end  may  order  an  amended  or 

1  Nightingale  v.  Scannell,  6  Cal.  owning  the  balance  of  the  cause  of 
'506,  65  Am.  Dec.  525;  Pueblo,  City  action,  and  the  court  held  that  not- 
of,  V.  Dye,  44  Colo.  35,  96  Pac.  969;  withstanding  that  a  cause  of  action 
German  Fire  Ins.  Co.  v.  NuUene,  may  not  be  split,  and  separate 
51  Kan.  764,  33  Pac.  467;  Cohen  v.  actions  maintained  thereon  in  the 
Clark,  44  Mont.  151,  119  Pac.  775;  first  place,  that  the  defendant  hav- 
Tootle  V.  Kent,  12  Okla.  674,  73  ing  settled  with  the  other  party 
Pac.  310.  interested  in  the  cause  of  action. 

2  See  Wichita  &  W.  R.  Co.  v.  plaintiff  thereby  became  the  owner 
Beebe,  39  Kan.  465,  18  Pac.  502;  of  the  entire  cause  of  action  re- 
Kansas  City,  M.  &  O.  R.  Co.  v.  maining,  and  could  maintain  the 
Shutt,  24  Okla.  96,  138  Am.  St.  Rep.  suit— Fireman's  Fund  Ins.  Co.  v. 
870,  20  Ann.  Gas.  255,  104  Pac.  51.  Oregon   R.  &  Nav.   Co.,   58  Wash. 

Plaintiff    owning    on    part    of    a      332,  108  Pac.  770. 
cause  of  action   for  a  tort  of  the  3  See,  post,  §  592. 

defendant,    commenced    an   action  4  See. Kerr's  Cyc.  Cal.  Code  Civ. 

thereon  and  thereafter  the  defen-      Proc,  §  433. 
dant  settled  with  the  other  party  5  See,  ante,  §§583  et  seq. 

798 


Ch.  III.]  JOINDER  or   PLAINTIFFS.  §  591 

supplemental  complaint  and  direct  that  a  summons^  be 
issued  thereon  and  the  process  served.-  When  the  action 
is  for  the  recovery  of  real  estate,  or  of  an  interest  therein, 
or  of  personal  property,  or  to  determine  conflicting  claims 
thereto,  and  a  person  not  a  plaintiff,  but  having  an  inter- 
est in  the  subject-matter  of  the  action,  makes  application 
to  the  court  to  be  made  a  party,  the  court  may  order  him 
brought  in,  by  the  proper  amendment.^  The  procedural 
codes  in  other  jurisdictions  have  like  provisions. 

§  591.  Joinder  of  plaintiffs — In  general.  The  Cali- 
fornia Code  of  Civil  Procedure  provides  that  all  persons 
having  an  interest  in  the  subject-matter  of  the  action,  and 
in  obtaining  the  relief  demanded,  may  be  joined  as  plain- 
tiffs,^  and  other  procedural  codes  have  a  like  provision. 
These  are  borrowed  from  the  former  equity  practice;  as 
is  also  the  further  provision,  found  alike  in  all  procedural 
codes,  that  ''of  the  parties  to  the  action  those  who  are 
united  in  interest  must  be  joined  as  plaintiffs  or  defen- 
dants ;  but  if  the  consent  of  any  one  who  should  have  been 
joined  as  plaintiff  can  not  be  obtained,  he  may  be  made  a 
defendant,  the  reason  thereof  being  stated  in  the  com- 
plaint. "^  These  sections,  as  well  as  the  one  which  pro- 
vides that  all  actions  shall  be  prosecuted  in  the  name  of 
the  ''real  party  in  interest, "^  have  many  exceptions, 
which  will  be  hereafter  noticed. 

Defendant's  right,  where  he  has  made  but  one  contract 
or  incurred  but  a  single  obligation,  is  to  require  that  the 
whole  case  be  disposed  of  in  one  action.^  There  may  be 
cases  of  a  contract  made  with  two  or  more  persons  of  such 

1  As  to  summons,  see,  ante,  §  123  i  See  Kerr's  Cyc.  Cal.  Code  Civ. 
et  seq.                                                          Proc,  §  378. 

As  to  service  of  process,   see,  2  Id.,  §  382. 

ante,  §§  144  et  seq.  3  See,  ante,  §§  583  et  seq. 

2  See  Kerr's  Cyc.  Cal.  Code  Civ.  t  As  to  splitting  demands, 
Proc,  2d  ed.,  §  389;  Consolidated  whether  in  actions  ex  contractu  or 
Supp.  1906-1913,  p.  1420.  ex    delicto,    see    authorities    cited, 

2  Id-  ante,  §  589,  footnotes  1  and  2. 

799 


§  592  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

nature  that  a  particular  breach  by  the  one  party  may 
injure  but  one  of  several  persons  who  form  the  other 
party  to  the  contract;  and  in  such  case  only  the  person 
who  has  sustained  damages,  and  who  would  be  entitled 
to  receive  compensation  for  the  breach,  need  sue;  but 
wherever  the  damages  are  sustained  by  all  of  several  con- 
stituting one  of  the  parties  to  the  contract,  all  must  join 
as  plaintiffs,  unless  the  contract  itself  severs  the  interest 
of  each  from  the  other,  or  unless  the  amount  to  which 
each  is  entitled  has  been  determined  by  the  mutual  agree- 
ment of  both  parties  to  the  contract,  which  of  course 
would  amount  to  a  several  liquidation,  and  would  enable 
each  party  to  sue  separately  for  his  share ;  the  contract 
and  the  breach  in  such  case  being  only  matter  of  induce- 
ment. 

''A  contract  by  one  person  with  two  jointly  does  not 
comprehend  or  involve  a  contract  with  either  of  them  sep- 
arately, as  is  evident  from  the  well-known  doctrine  that 
a  covenant  or  promise  to  two,  if  proved  in  an  action 
brought  by  one  of  them,  sustains  a  plea  which  denies  the 
existence  of  the  contract."^  From  this  it  follows  that  all 
the  parties  to  a  joint  and  several  contract  may  not  be 
necessary  parties  in  an  action  thereon.^ 

^  592.  Death  ok  refusal  to  join.  We  have  al- 
ready seen^  that,  following  the  rule  in  equity,  under  the 
procedural  codes,  where  a  person  who  should  be  a  party 
plaintiff  refuses  to  join  in  the  action,  that  fact  may  be 
stated  in  the  complaint  and  the  person  made  a  party 
defendant ;  and  the  death  of  such  a  person,  that  fact  being 
set  forth,  is  a  sufficient  excuse  for  not  making  him  a 
party.2    All  persons  in  interest  must  be  made  parties, 

5  Wetherell  v.  Langston,  1  Exch.  2  See   Hays   v.   Lasater,    3   Ark. 

g44  565;  Nightingale  v.  Scannell,  6  Cal. 

0  Warren  v.  Hall,  20  Colo.  508,  38  506,  509,  65  Am.  Dec.  525,  18  Cal. 
Pa^c    767.  315,  322;  First  Nat.  Bank  of  Hum- 

1  See  ante,  §  591,  text  and  foot-  mell,  14  Colo.  259,  20  Am.  St. 
note  2.  Rep-  257,  8   L.  R.  A.  788,  23  Atl. 

800 


ch.  III.]  COMMUNITY  OF  INTEREST — TEST  OF.  §  593 

either  plaintiff  or  defendant;^  and  in  all  such  cases  the 
recovery  must  be  entire,  and  for  the  whole  interest,  so 
tliat  the  defendant,  against  whom  the  recovery  is  had, 
may  not  be  subjected  to  a  second  action;  while  those 
jointly  entitled  to  the  recovery,  though  one  of  them  is  a 
defendant,  being  both  before  the  court,  may  have  their 
mutual  rights  and  interests  adjusted  in  the  same  decree 
or  judgment;  or  if  from  a  complication  of  accounts,  as 
between  partners,  that  is  inconvenient,  the  recovery  must 
enter  into  the  accounting  between  them.  The  person  thus 
made  a  defendant  is  equally  with  the  plaintiff  bound  by 
the  judgment  or  decree. 

§  593.  Community  of  interest — Test  of.  The  in- 
terest referred  to  in  the  procedural  codes ^  is  a  community 
of  interest  is  that  joint  connection  with,  or  relation  to, 
the  subject-matter  which,  by  the  rules  of  the  common  law, 
will  preclude  a  separate  action.  It  refers  to  such  cases 
as  joint  tenants,  cotrustees,  partners,  joint  owners,  or 
joint  contractors  simply.-  In  all  these  cases  the  right,  to 
assert  or  protect  which  the  suit  is  brought,  is  one  which 
exists  against  them  all,  or  the  obligation  to  be  enforced 
is  common  to  them  all ;  then,  if  it  is  impracticable  to  bring 
tliem  all  before  the  court,  one  may  sue  or  defend  for  all.^ 
The  rule  which  permits  the  omission  of  parties,  and  the 
filing  of  a  bill  by  one  in  behalf  of  all  the  others,  is  founded 
on  necessity,  and  is  established  to  prevent  a  failure  of 
justice  which  could  not  be  otherwise  avoided.* 

986;    Godding   v.    Dicker,    3    Colo.  (N.  Y.)    596,   13  Abb.   Pr.   119,   22 

App.   198,  32  Pac.   832;    Moody  v.  How.  Pr.  233;   Jones  v.  Felch,   16 

Sewall,  14  Me.  295;  Allen  v.  Miller,  N.   Y.   Super.   Ct.   Rep.    (3   Bosw  ) 

11  Ohio  St.  374.  63. 

3  See  Williams  V.  Southern  Pac.  3  See,    post,    §595;     Casey    v. 

R.  Co.,  110  Cal.  457,  460,  42  Pac.  Brown,    58    Cal.    180;    Baker   v. 

974;  Birch  v.  Cooper,  136  Cal.  636,  Ducker,  79  Cal.  365,  21  Pac.  764; 

69  Pac.  420.  Reid  v.  Evergreens,  The,  21  How. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  Pr.  (N.  Y.)  319. 

Proc,  §§  378,  382.  4  Smith  v.   Lockwood,   13    Barb. 

2  Gibbons  v.  Peralta,  21  Cal.  232,       (N.  Y.)    209;    Bouton  v.  V.rooklyn, 
233;    Bucknam  v.  Brett,  35  Barb.      City   of,    15   Barb.    (N.   Y.)    375,   7 

I  Code  PI.  and  Pr.— 51  gQ-^ 


§§  594,  595  CODE  pleading  and  practice.  [Pt.  Ill, 

§  594.  Makried  woman  to  be  joined  with  hus- 
band— Exceptions.  Under  the  California  Code  of  Civil 
Procedure,  a  married  woman  must  join  her  husband  as  a 
plaintiff  when  suing  another  person,  except  in  those  cases 
in  which  the  action  (1)  concerns  her  separate  property, 
(2)  is  for  an  injury  to  her  person,  or  for  a  libel  or  a  slan- 
der, (3)  is  for  false  imprisonment  or  for  malicious  prose- 
cution, (4)  is  to  enforce  her  right  or  claim  to  homestead 
property,  (5)  is  an  action  against  her  husband,  or 
(6)  where  she  is  living  separate  and  apart  from  her 
husband  by  reason  of  his  desertion  of  her,  or  by  an  agree- 
ment in  writing  between  them, — in  all  which  cases  she 
may  sue  alone. ^  Other  procedural  codes  have  similar 
provisions  as  to  actions  by  married  women. 

§  595.    Numerous  parties.    The  general  rule  in  the 

old  equity  practice^  requiring  all  persons  materially  in- 
terested to  be  made  parties  plaintiff  in  the  action  or  suit 
was  always  dispensed  with  where  it  was  impracticable, 
or  very  inconvenient,  as  in  the  case  of  a  very  numerous 
association  in  a  stock  concern,  in  effect  a  partnership  ;- 
and  this  rule  in  equity  pleading  has  been  carried  into  the 
procedural  codes,^  which  provides  that  where  the  parties 
are  numerous,  and  it  is  impracticable  to  bring  them  all 
before  the  court,  or  where  the  question  is  one  of  common 
or  general  interest,  one  or  more  may  sue  or  defend  for 
the  benefit  of  all.  It  would  be  very  difficult  to  lay  down 
any  positive  rule  by  which  the  degree  of  the  inconvenience 
which  would  justify  the  omission  could  be  absolutely  de- 
How.  Pr.  198;  Towner  v.  Tooby,  38  646,  30  L.  Ed.  1249;  Smith  v. 
Barb.  (N.  Y.)  598.  Swornstedt,    57   U.    S.    (16    How.) 

1  Kerr's  Cyc.  Cal.  Code  Civ.  288,  14  L.  Ed.  942;  Cockburn  v, 
Proc,  2d  ed.,  §370;  Consolidated  Thompson,  16  Ves.  321,  33  Eng. 
Supp.  1906-1913,  p.  1408.  Repr.  1005;  Van  Sandau  v.  Moore, 

1  See,  ante,  §  591.  1  Russ.  441,  38  Eng.  Repr.  171. 

2  Gorman  V.  Russell,  14  Cal.  540;  See  Story's  Eq.  PI.  (9th  ed.). 
Gates  V.  Boston  &  N.  Y.  A.  L.  R.      §  135. 

Co.,  53  Conn.  333,  349,  5  Atl.  695;  n  See  Kerr's  Cyc.  Cal.  Code  Civ. 

writ  of  error  dismissed,  122  U.  S.      Proc,  §§  382,  384. 

802 


oil.  III.]  NUMEROUS  PARTIES — CALIFORNIA  RULE,  §  595 

termined.  Other  circumstances  aside  from  the  numbers 
must  often  enter  into  a  proper  determination.  The  trial 
court  has  a  large  degree  of  discretion  in  the  matter,  con- 
sidering (1)  the  difficulty  and  expense  of  joining  them, 
and  (2)  the  paramount  importance  of  having  such  a  rep- 
resentation of  the  interests  concerned  as  to  insure  that 
the  issues  are  fully  and  fairly  tried."'  The  exigencies  of 
the  case,  the  necessity  for  prompt  action,  the  hazards,  or 
inevitable  loss  from  delay,  might  justify  the  omission  in 
one  case,  while  in  another  all  the  defendants,  thougli 
equally  numerous,  should  be  brought  in.  The  facts  relied 
upon  to  justify  the  omission  should  be  clearly  stated  in 
the  complaint,  and  become  a  matter  for  judicial  decision, 
governed  by  the  spirit  of  the  particular  procedural  code 
and  the  facts  of  the  particular  case.^  Thus,  in  the  case  of 
an  action  by  or  on  behalf  of  a  church  organization  or 
congregation,  and  similar  organizations  consisting  of  a 
large  body  of  members,  where  the  complaint  avers  such 
association  of  persons  and  sets  out  that  they  are  numer- 
ous, that  it  is  impracticable  to  bring  them  all  before  the 
court,  and  that  the  plaintiffs  prosecute  the  action  for  all 
the  members  of  the  society  or  church  or  association  as 
well  as  for  themselves,  one  or  more  may  sue  for  all.^ 

The  California  rule,  under  the  Procedural  Practice  Act, 
section  14,  was  that  the  provision  applied  to  suits  in 
equity  only,  and  did  not  include  actions  at  law,^  but  tliis 
distinction  does  not  exist  under  the  present  Code  of  Civil 
Procedure,  or  under  the  procedural  codes  in  the  various 
jurisdictions. 

4  Stevenson  v.  Austin,  44  Mass.  5  Andrews  v.  Mokelumne  Hill 

(3  Mete.)   474;    Smith  v.  William.  Co.,  7  Cal.  330,  333. 

116  Mass.  510,  512;  Stillwell  v.  Mc-  "Baker  v.  Ducker,  79   Cal.  3Go. 

Neely,  2  N.  J.  Eq.  (1  Gr.)  305.  307;  ^^  ^^''-  '^^^ '   Wheelock  v.  F  i  r  s  t 

Tj  iw*         tj  „  ..    o   T.     •          ^^  Presbyterian  Church,  119  Cal.  477. 

Hallett  V.  Hallett,  2  Paige  Ch.  430,  51  Pac.  841 

(N.  Y.)   15;    Harvey  v.   Harvey,  4  7  Andrews  v.   Mokelumne  Hill 

Beav.  215;   5  Beav.  134.  Co.,  7  Cal.  330,  333. 

803 


§  596  CODE  PLEADING  AI^D  PRACTICE.  [Ft.  Ill, 

§  596.  Executors  and  administrators.  To  the  pro- 
vision of  the  California  Code  of  Civil  Procedure  requir- 
ing that  every  action  shall  be  prosecuted  in  the  name  of 
the  real  party  in  interest/  there  are  certain  exceptions, 
among  which  are  actions  prosecuted  by  executors  and 
administrators;  the  code  expressly  providing  that  (1)  an 
executor,  administrator,  or  (2)  trustee  of  an  express 
trust,  or  (3)  a  person  expressly  authorized  by  statute, 
may  sue  without  joining  with  him  the  persons  for  whose 
benefit  the  action  is  prosecuted,  and  (4)  a  person  with 
whom  or  in  whose  name  a  contract  is  made  for  the  benefit 
of  another  is  a  trustee  of  an  express  trust,  within  the 
meaning  of  this  section.^ 

The  estate  of  a  decedent  being  entire,  in  those  cases  in 
which  more  than  one  executor  has  been  appointed  and  has 
qualified,  they  are  considered  in  law  as  but  one  person, 
and  all  must  be  joined  as  plaintiffs  in  any  action  at  law 
or  suit  in  equity  for  or  on  account  of  the  estate.^  The 
former  rule  was  that  where  more  than  one  executor  was 
named,  all  must  join  in  an  action  for  or  on  behalf  of  the 
estate,  even  though  some  had  renounced  ;^  but  by  express 
provision  of  the  California  Code  of  Civil  Procedure  when 
all  the  executors  named  are  not  appointed  by  the  court, 
those  appointed  have  the  same  power  and  authority  to 
perform  all  acts  and  discharge  the  trust,  required  by  the 
will,  as  effectually  for  every  purpose  as  if  all  were 
appointed  and  should  act  together.^  And  the  same  rule 
applies  in  the  case  of  two  or  more  administrators  and  but 
one  acting.^ 

1  See,  ante,  §§  583-587.  313;  Hensloe's  Case,  9  Co.  36b,  37b, 

2  Kerr's  Cyc.  Cal.  Code  Civ.  77  Eng.  Repr.  784,  786;  Cabell  v. 
Proc,  §  369.  Vaughan,   1  Saund.  291,  85  Eng. 

3  Insley  v.  Shire,  54  Kan.  793,  45  Repr.   389. 

Am.  St.  Rep.  308,  39  Pac.  713.  5  Kerr's    Cyc.    Cal.    Code    C  i  v. 

See  Church's  Probate  Law  and      Proc.,  §1355. 
Practice,  vol.  1,  p.  1044.  6  Packer  v.  Wilson,  15  Wend. 

i  Bodle  V.  Hulse,  5  Wend.  (N.  Y.)       (N.  Y.)  343. 

804 


ell.  III.]  EXECUTORS  AND   ADMINISTRATORS.  §  596 

Uuder  procedural  codes,  executors  have  the  right  to 
institute  actions  under  the  general  authority  conferred  l)y 
statute, — e.  g.,  an  action  to  quiet  title,'  bring  and  maintain 
ejectment,^  replevin,''  and  the  like.  But  the  provision  that 
an  executor  may  sue,  without  joining  with  him  the  person 
for  whose  benefit  the  action  is  prosecuted,  has  no  applica- 
tion in  case  of  an  action  for  the  construction  of  a  wilL^*^ 

In  California,  it  is  also  provided  that  ''actions  for  the 
recovery  of  any  property,  real  or  personal,  or  for  the  pos- 
session thereof,  and  all  actions  founded  upon  contracts, 
may  be  maintained  by  and  against  executors  and  admin- 
istrators in  all  cases  in  which  the  same  might  have  been 
maintained  by  or  against  their  respective  testators  or 
intestates.  "^1  In  such  section,  actions  to  quiet  title  to 
lands  are  omitted.  It  is  especially  provided  ''that  the 
heirs  or  devisees  may  themselves,  or  jointly  with  the 
executor  or  administrator,  maintain  an  action  for  the 
possession  of  the  real  estate,  or  for  the  purpose  of  quiet- 
ing title  to  the  same,  against  any  one  except  the  executor 
or  administrator.  "^- 

As  executors  and  administrators  are  required  to  take 
into  their  possession  all  the  estate  of  the  decedent,  real 
and  personal,^^  they  must  have  the  right  to  maintain  an 

7  Curtis  V.   Sutter,  15  Cal.  259;  9  Halleck  v.  Mixer,  16  Cal.  574, 

Teschmacher  v.  Thompson,  18  Cal.  579;  Whitaker  v.  Boston,  120  Tenn. 

20,  79  Am.  Dec.  151;  Pennie  v.  Hil-  207,  216,  10  S.  W.   1022;    London, 

dreth,    81    Cal.    127,    22    Pac.    398;  Paris  &  American  Bank  v.  Aron- 

Blakemore  v.  Roberts,  12  N.  D.  394,  stein,  54  C.  C.  A.  663,  117  Fed.  601, 

401,  96  N.  W.  1029.  605. 

><  S  6  e  Mayer  v.  Karnegay,  163  lo  Hobart   College,   Trustees   of, 

Ala.  371,  136  Am.  St.   Rep.  79,  50  v.  Fitzburgh,  7  N.  Y.  130. 

So.  880;   Haight  v.  Green,  19  Cal.  ii  Kerr's    Cyc.   Cal.    Code   Civ. 

113;    McLearn  v.   Benton,   73   Cal.  Proc,  §1582. 

329,   342,   2   Am.   St.    Rep.   814,   14  12  Kerr's    Cyc.    Cal.    Code    Civ. 

Pac.  879;  Patchett  v.  Pacific  Coast  Proc,  2d  ed.,  §  1452;  Consolidated 

R.  Co.,  100  Cal.  505,  510,  35  Pac.  Supp.  1906-1913,  p.  1869. 

73;    McCarthy  v.  Brown,  113  Cal.  1 3  See  Kerr's  Cyc.  Cal.  Code  Civ. 

15,  20,  45  Pac.  14;  Jenkins  v.  Jen-  Proc,  §1581.     See  Harwood  v. 

sen,  24  Utah  108,  123,  66  Pac  773.  Marye,  8  Cal.  580;  Scott  v.  Lloyd, 

See   note   136   Am.  St.    Rep.   82.  16  Fla.  155. 

805 


§  596  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

action  for  its  possession,  \vitliout  being  compelled  to 
obtain  the  consent  of  the  heirs  or  devisees,  but  it  is  not 
clear  that  the  executor  or  administrator  can  bring  an 
action  to  quiet  title  without  joining  the  heir  or  de\^see, 
under  either  of  these  provisions.  However,  in  cases 
where  it  became  necessary  to  the  proper  execution  of  the 
trust  that  such  action  should  be  brought,  he  might,  if  the 
heirs  or  devisees  refused  to  join  as  plaintiffs,  make  them 
defendants,  under  section  382.^^  An  action  to  quiet  title 
may  be  maintained  by  the  heirs  without  joining  the 
administrator.^^ 

In  construing  these  provisions  it  has  been  held  that  an 
executor  or  administrator  can  maintain  an  action,  without 
joining  his  beneficiary,  for  the  wrongful  conversion  or 
embezzlement  of  the  property  of  his  intestate  ;^^  or  an 
action  of  replevin;^'  or  for  trespass  to  the  real  property 
of  the  testator  ;^^  or  to  foreclose  a  mortgage  ;^^  or  to  set 
aside  deeds  fraudulently  made  by  the  deceased.-"  So,  also, 
an  administrator  may  maintain  an  action  on  a  note  made 
payable  to  him  as  administrator.-^  But  in  Massachusetts 
an  administrator  of  the  deceased  promisee  and  the  sur- 

Action    against   executor   of   de-  38   Pac.   965;    Sheldon  v.  Hoy,   11 

ceased   executor,  lies  in  favor  of  How.  Pr.   (N.  Y.)   11. 

the   executor  of  an  estate  to  re-  See,   also,   cases   in   footnote   9, 

cover   the    proceeds    of   a  life   in-  this  section. 

surance  policy  upon  the  life  of  i7  Halleck  v.  Mixer,  16  Cal.  575. 

decedent,  and  to  recover  the  value  isHaight  v.  Green,  19  Cal.  113; 

of  other  personal  property  of  the  Rockwell  v.   Saunders,  19   Barb, 

estate,  collected  by  the  deceased  (N.  Y.)  473. 

executor,  and  not  accounted  for  to  i9  Harwood  v.  Marye,  8  Cal.  580. 

the  estate.— Curran  v.  Kennedy,  89  20  Kerr's    Cyc.    Cal.    Code    C  i  v. 

Cal.  98,  26  Pac.  641.  Proc,  §  1589. 

14  See,  however,  Curtis  v.  Sut-  21  Corcoran  v.  Dall,  32  Cal.  82; 
ter,  15  Cal.  259.  Cooper   v.    Kerr,    3   Johns.    Cas. 

15  Tryon  v.  Huntson,  67  Cal.  325,  (N.  Y.)  606;  Robinson  v.  Crandall. 
7  Pac.  741.  9   Wend.    (N.  Y.)    425;    Merritt  v. 

leBeckman  v.  McKay,  14  Cal.  Seaman,  6  N.  Y.  168,  reversing  6 
250;  Jahns  v.  Nolting,  29  Cal.  507,  Barb.  330;  Eagle  v.  Fox,  28  Barb. 
512;  Hain  v.  Henderson,  50  Cal.  (N.  Y.)  .473,  8  Abb.  Pr.  40;  Bright 
367,  369;  Levy  v.  Superior  Court,  v.  Currie,  7  N.  Y.  Super.  Ct.  Rep 
105' Cal.  600,  608,  29   L.  R.  A,  Sll.       (5  Sandf.)  433. 

80G 


Ch.  III.]  FOREIGN  EXECUTOR  OR  ADMINISTRATOR.  §  596 

viving  promisee  of  a  promissory  note  can  not  join  in 
bringing  an  action  on  the  note.--  Nor  can  an  adminis- 
trator de  bonis  non  maintain  an  action  in  his  own  name 
for  the  price  of  goods  of  his  intestate,  sold  by  a  previous 
administrator.-^  And  an  administrator  can  not  maintain 
an  action  to  recover  personal  property  belonging  to  the 
estate  after  he  has  ceased  to  be  administrator  of  the 
estate.2* 

On  a  demand  due  to  the  testator  before  his  decease,  the 
executor  may  sue,  either  in  his  individual  capacity  or  in 
his  capacity  as  executor.-^  So  he  may  sue  as  adminis- 
trator, or  in  his  own  right  upon  a  note  made  or  indorsed 
to  him  as  administrator.-*^  And  in  an  action  for  conver- 
sion, after  the  death  of  the  intestate,  the  administrator 
may  sue  in  his  own  name  properly,  though  the  conversion 
took  place  before  the  granting  of  the  letters  of  admin- 
istration, as  the  letters  relate  back  to  the  time  of  the 
death,  and  give  title  by  relation.-^  And  it  has  been  held 
in  New  York  that  an  executor  may  sue  in  two  different 
capacities,  as  executor  and  devisee,  where  the  causes  of 
action  are  such  as  may  be  joined.-^ 

A  foreign  executor  or  administrator  can  not  sue  in 
another  state  in  his  representative  capacity.  His  au- 
thority does  not  extend  beyond  the  jurisdiction  of  the 
government  under  which  he  w^as  invested  with  his  au- 
thority.^^ The  objection  that  a  foreign  administrator 
can  not  sue  must  be  taken  by  demurrer.^*^  But  the  assignee 
of  the  thing  in  action  transferred  by  such  foreign  executor 

ii2  Smith  V.  Franklin,  1  M  a  s  s.  27  Sheldon  v.  Hoy,  11  How.  Pr. 

480.  (N.   Y.)    11. 


2S  Armstrong  v.    Hall,    17    How. 
Pr.   (N.  Y.)   76. 


23Calder  v.  Pyfer,  2  Cr.  430, 
Fed.  Cas.  No.  2299. 

24  Affierbach    v.    McGovern,    79 
Cal.  268,  21  Pac.  821.  "^  Terr's    Cyc.    Cal.    Code    Civ. 

25  Merritt  v.    Seaman,    6    N.    Y.      P^°^'  §  ^^l^- 

168,  reversing  6  Barb.  330.  so  Robbins    v.    Wells,    24    N.    Y. 

20  Bright  v.    Currie,    7   N.    Y.      Super.   Ct.   Rep.    (1  Rob.)    666,   18 
Super.  Ct.  Rep.  (5  Sandf.)   433.  Abb.  Pr.  191,  26  How.  Pr.  15. 

807 


§§597,598  CODE  pleading  and  practice.  [Pt.  Ill, 

or  administrator,  may  sue  the  debtor  resident  in  another 
state;  and  so  also  may  a  testamentary  trustee  sue  in  a 
foreign  state  to  recover  stocks  belonging  to  the  trust 
estate.^^  The  disability  of  the  representative  is  personal 
and  does  not  affect  the  subject  of  the  action ;  and  in  the 
application  of  this  rule,  executors  or  administrators  made 
or  appointed  under  the  laws  of  any  other  state  in  the 
Union  are  regarded  as  foreign.^^ 

§  597.  Holders  of  title  under  common  source.  Two 
or  more  persons  claiming  any  estate  or  interest  in  lands 
under  a  common  source  of  title,  whether  holding  as 
(1)  tenants  in  common,  (2)  joint  tenants,^  (3)  copar- 
ceners;- or  (4)  in  severalty,  are  properly  united  as  plain- 
tiffs in  an  action  against  any  person  claiming  an  adverse 
interest  therein,  for  the  purpose  of  (1)  determining  such 
adverse  claim,  (2)  of  establishing  such  common  source 
of  title,  (3)  of  declaring  the  same  to  be  held  in  trust, 
(4)  of  removing  a  cloud  upon  the  same.^ 

§  598.  Joint  owners  of  chattles.  Both  at  common 
law  and  under  the  procedural  codes,  a  co-owner  of  chattle 
property  can  maintain  no  action  to  enforce  his  proprie- 
tary rights  therein  without  joining  his  co-owners;^  but 
one  co-owner  can  not  recover  possession  of  the  common 
property  from  his  co-owner  who  is  in  the  exclusive  pos- 
session thereof,  in  an  action  in  the  nature  of  replevin. - 

31  Toronto  General  Trust  Co.  v.  Am.  St.  Rep.  743;  45  Am.  St.  Rep. 
Chicago,  B.  &  Q.  R.  Co.,  123  N.  Y.  672;  2  L.  R.  A.  828;  2  Eng.  Rul. 
37,  25  N.  E.  198,  reversing  4  N.  Y.      Cas.  91. 

Supp.  726.  1  As  to  joint  tenants,  see,  post, 

32  Peterson    v.    Chemical    Bank,      §  599. 

32  N.  Y.  21,  88  Am.  Dec.  298,  af-  2  As    to    copartners,    see,    post, 

firming  25  N.  Y.  Sup.  Ct.  Rep.  (2  §  601. 

Rob.)    605;    Taylor   v.    Syme,    162  3  See  Kerr's  Cyc.  Cal.  Code  Civ. 

N.  Y.  513,  31  N.  Y.  Civ.  Proc.  Rep.  Proc,  §  381. 

1,  57  N.  E.  83;   Stewart  v.  O'Don-  i  See  Peck  v.  McLean,  36  Minn, 

nell,  2  Dem.  (N.  Y.)  17;  Jones,  In  228,  1  Am.  St.  Rep.  665,  30  N.  W. 

re,  3  Redf.  (N.  Y.)  257;  Patterson  759. 

V.  Pagan,  18  S.  C.  584.  2  Mills   v.    Malott,   43    Ind.    248; 

See  notes  2  Am.  St.  Rep.  886;  8  Cross  v.  Hulett,  53  Mo.  397;  State 

808 


ell.  III.]  JOINT  OWNERS  OF  CHATTELS.  §  598 

Thus,  tenants  in  conunon  of  wool,  who  became  such  by 
one  of  them  letting  sheep  for  a  year  to  the  other,  with  an 
agreement  that  the  latter  was  to  take  care  of  the  sheep, 
shear  them,  sack  the  wool,  and  deliver  it  to  the  o\vner  of 
the  sheep  at  A,  a  port,  to  be  by  him  shipped  to  a  commis- 
sion merchant  at  B,  to  be  sold,  and  that  when  the  wool 
was  sold  the  proceeds  were  to  be  equally  divided,  can 
not  maintain  replevin  against  each  other,  nor  can  one 
against  the  vendee  of  the  other  f  and  the  same  necessity 
exists  for  the  joinder  of  all  the  cotenants  in  an  action  to 
recover  for  the  conversion  by  a  stranger  *  but  one  joint 
tenant  or  tenant  in  common  may  sue  another  joint  tenant 
or  tenant  in  common  who  sells  for  his  own  benefit  or 
destroys  the  common  property.^  So,  also,  tenants  in  com- 
mon must  join  in  an  action  for  an  entire  injury  done  to 
the  partnership  property,  either  in  tort,  or  assumpsit 
when  tort  is  waived.^  Joint  owners  or  joint  charterers 
of  ships  are  tenants  in  common,  and  must  all  join  in  an 
action  affecting  the  common  property,  or  for  the  recovery 
of  freight. '^ 

V.   Wilbur,   77   N.   Y.   158;    Hill   v.  6  Gilmore    v.    Wilbur,    29    Mass. 

Seager,  3  Utah  379,  3  Pac.  545.  (12  Pick.)    120.  22  Am.   Dec.  410; 

3  Hewlett  V.  Owens.  50  Cal.  474,  Corcoran  v.  White.  146  Mass.  329, 

51  Cal.  570;  Hill  v.  Seager,  3  Utah  4  ^m.  St.  Rep.  313,  15  N.  E.  636; 


Clapp  V.  Pawtucket  Institution  for 
Sav.,  15  R.  I.  489,  2  Am.  St.   Rep. 

915,   8  Atl.  697. 


379,  380.  3  Pac.  545. 

4  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §§367.  381;  supra.  §§583  et 
seq.,  589;  Whitney  v.  Stark,  8 
Cal.  514,  68  Am.  Dec.  360;  Rice  Exceptions  to  the  rule,  see  Peck 
V.  Hollenbeck.  19  Barb.  (N.  Y.)  '^-  McLean.  36  Minn.  228,  1  Am. 
664;    Gock  v.   Keneda.   29   Barb.  St.  Rep.  665,  30  N.  W.  759. 

(N.  Y.)   120.  T  Merritt  v.  Walsh.  32  N.  Y.  685; 

5  Yamhill  Bridge  Co.  v.  Newby,  Donnell  v.  Walsh,  33  N.  Y.  43.  88 
1  Ore.  173.  174;  Wood  v.  Steinau.  Am.  Dec.  361;  Dennis  v.  Kennedy, 
9  S.  D.  110.  114.  68  N.  W.  160;  19  Barb.  (N.  Y.)  517;  Sherman  v. 
Schwartz  v.  Kennedy,  142  Fed.  Fream.  30  Barb.  (N.  Y.)  478; 
1031;  Heath  v.  Hubbard,  4  East  Bucknam  v.  Brett,  35  Barb.  (N.  Y.) 
110,  102  Eng.  Repr.  771;  Brown  596.  13  Abb.  Pr.  119,  22  How.  Pr. 
V.  Hedges.  1  Salk.  290.  91  Eng.  233;  Coster  v.  New  York  &  E.  R. 
Repr.  257;  Fennings  v.  Granville.  Co..  13  N.  Y.  Super.  Ct.  Rep.  (6 
1  Taunt.  241,  127  Eng.  Repr.  825.  Duer)    43,  3  Abb.  Pr.  332. 

809 


§  599  CODE  PLEADING  AND  PRACTICE,  [Pt.  Ill, 

§  599.  Joint  tenants  and  tenants  in  common.  The 
California  Code  of  Civil  Procedure  regulating  actions  by- 
joint  tenants  and  tenants  in  common,  follows  the  usual 
rule  in  the  various  procedural  codes,  the  provision  being 
that  "all  persons  holding  as  tenants  in  common,  joint 
tenants,  or  coparceners,  or  any  number  less  than  all,  may 
jointly  or  severally  commence  or  defend  any  civil  action 
or  proceeding  for  the  enforcement  or  protection  of  the 
rights  of  such  party.  "^  We  have  already  seen  what  the 
code  provision  is  in  the  case  of  persons  holding  title  from 
a  common  source.- 

At  the  common  law,  joint  tenants  were  required  to  join 
in  an  action  of  ejectment,  and  the  failure  to  do  so  was 
fatal  to  a  recovery.^  "While  two  or  more  cotenants  could 
not  join  in  an  action  of  ejectment,  the  interest  of  each 
being  separate  and  distinct.^  But  under  the  provisions  of 
the  procedural  codes,  the  right  of  one  tenant  in  common 
to  recover  in  an  action  of  ejectment  the  possession  of  the 
entire  tract  as  against  all  persons  but  his  cotenants,  has 
been  repeatedly  upheld.^    Or  he  may  sue  alone  for  his 

1  Kerr's  Cyc.  Cal,  Code  Civ,  Newman  v.  Bank  of  California,  80 
Proc,  §  384.  Cal.   368,   13    Am,   St.    Rep,    169,   5 

2  See,  ante,  §  597,  L,  R.  A.  467,  22  Pac.  261;  Moulton 

3  Dewey  v.  Lambier,  7  Cal.  347.  v.  McDermott,  80  Cal.  629,  22  Pac. 

4  De  Johnson  v.  Sepulbeda,  5  296;  Lee  Chuck  v.  Quan  Wo 
Cal.  149;  Throckmorton  v.  Burr,  5  Chong,  91  Cal.  593,  28  Pac.  445; 
Cal.  401;  Park  v.  Kilham,  8  Cal.  79,  McDonald  v.  McCoy,  121  Cal.  55, 
68  Am,  Dec.  312  (but  they  may  67,  53  Pac.  421.  COLO.— Weise 
join  in  an  action  for  the  diversion  v.  Barker,  7  Colo.  178,  2  Pac.  919. 
of  the  waters  of  a  common  ditch) ;  FLA. — Simmons  v.  Spratt,  26  Fla. 
Welch  V.  Sullivan,  8  Cal.  187.  449.  461,  9  L.  R.  A.  464,  8  So.  123. 

5  See:  ALA.— Smith  v.  Thank-  KAN.— King  v.  Hyatt,  51  Kan.  504, 
ersley,  20  Ala.  272,  56  Am.  Dec,  37  Am,  St,  Rep,  304,  32  Pac.  1105. 
193.  CAL. —  Stark  v.  Barrett,  15  NEB.  —  Crook  v.  Vandervoort,  13 
Cal.  361,  371;  Touchard  v.  Crow,  Neb.  505,  507,  14  N.  W.  470. 
20  Cal.  150,  81  Am,  Dec,  108;  Ma-  N.  C— Thaines  v.  Jones,  97  N.  C. 
honey  v.  Van  Winkle,  21  Cal.  583;  121,  1  S.  E.  692.  TEX.— Johnson 
Caller  v.  Felt,  30  Cal.  484;.  Wil-  v.  Schumacher,  72  Tex.  334,  12 
liams  v.  Sutton,  43  Cal.  71;  Chip-  S.  W.  2t)7;  Wright  v.  Dunn,  73 
man  v.  Hastings,  50  Cal.  310;  Tex.  293,  11  S.  W.  330.  VT.— Mc, 
Chapman   v,   Quinn,    56    Cal.    266:  Farland   v.   Stone,    17   Vt.   165,   44 

810 


I'll.  111.]  TENANTS,  JOINT  AND  IX  COMMON.  §599 

moiety;®  or  may  in  equity  obtain  a  partition  J  And  these 
rules  apply  equally  to  the  grantee  of  a  tenant  in  com- 
mon.'^ So,  also,  executors  and  administrators  can  main- 
tain such  action  jointly  with  the  other  tenants  in  common 
in  all  cases  where  their  testators  or  intestates  could  have 
done  so,  until  the  administration  of  the  estates  they  repre- 
sent have  closed,  or  the  property  is  distributed  under  the 
decree  of  the  Probate  Court.^  But  if  an  estate  should 
be  sold  in  lots  to  different  purchasers,  by  different  con- 
tracts, they  could  not  join  in  exhibiting  one  bill  against 
the  vendor  for  specific  performance;  yet  where  there  was 
a  contract  to  convey  with  but  one  person,  under  which 
the  purchaser  conveyed  his  equitable  interest  of  a  moiety 
to  each  one  of  two  persons,  it  was  held  that  these  two  per- 
sons might  sue  the  original  vendor  for  specific  perform- 
ance.^*' And  where  one  tenant  in  common  sells  the  right  to 
a  stranger  to  cut  timber  off  of  the  common  property,  an- 
other tenant  in  common  of  the  same  property  can  not 
maintain  replevin  for  the  timber  after  it  has  been  cut.^^ 
After  severance  of  a  fund  held  in  common,  each  party 
may  maintain  a  separate  action  for  his  ascertained 
share.^^ 

Am.    Dec.   325.     WASH.— Allen  v.  Hart   v.    Robertson,    21    Cal.    348; 

Higgins,  9  Wash.  446,  448,  43  Am.  Mahoney  v.  Van  Winkle,   21   Cal. 

St.  Rep.  848,  37  Pac.  671.    FED.—  583;    Reed   v.   Splcer,   27   Cal.   64; 

Hardy  v.  Johnson,  68   U.   S.    (1  Carpenter  v.  Webster,  27  Cal.  560. 

Wall.)    371,    17    L.    Ed.   502;    Le  9  Reynolds   v.    Hosmer,    45    Cal. 

Franc  v.  Richmond,  5  Sawy.  601,  616,  631. 

G04,  Fed.  Cas.  No.   8209.  lo  Owen  v.   F^enk,   24   Cal.   171, 

li  Covilland  V.  Tanner,  7  Cal.  38;  177;    Utterbock    v.    Meeker,    16 

Collier    v.    Corbett,    15    Cal.    183;  Wash.  185,  192,  47  Pac.  428. 

Gric^wold  v.  Minneapolis,  St.  P.  &  ii  Alford  v.  Brodeen,  1  Nev.  228; 

S.  S.  M.  R.  Co.,  12  N.  D.  435,  439,  Paul  v.  Cragnas,   25  Nev.  316,  47 

102  Am.  St.  Rep.  572,  97  N.  W.  538.  L.   R.  A.  543,   59  Pac.  861;    Baker 

7  Beebee    v.    Griffing,    14    N.    Y.  v.  Wheeler,  8  Wend.   (N.  Y.)   505, 

235;    Tripp    v.    Riley,    15    Barb.  24  Am.  Dec.  66;  Gillum  v.  St.  Louis 

(N.  Y.)    333;    Tinney  v.  Stebbins,  A.  &   T.  R.  Co.,  5  Tex.  Civ.  App. 

28  Barb.   (N.  Y.)   290.  338,  340,  23  S.  W.  717;    McDodrill 

>*  Seward  v.  Malotte,  15  Cal.  304;  v.   Pardee   &   Curtin  Lumber   Co., 

Stark    V.    Barrett,    15    Cal.    361;  40  W.  Va.  564,  579,  21   S.   E.  878. 

Touchard    v.    Crow,    21    Cal.    162;  12  General  Mut.  Ins.  Co.  v.  Ben- 

811 


§  600  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

§  600.  Mortgages  and  mechanics'  liens — Foreclosure. 
In  actions  to  foreclose  mortgages,  all  persons  interested 
in  the  estate  may  be  made  parties,  but  no  person  holding 
an  unrecorded  mortgage,  conveyance  or  lien,  from  or 
under  the  mortgagor  at  the  commencement  of  the  action, 
need  be  made  a  party  to  an  action  to  foreclose  a  mortgage 
or  lien.^  The  mortgagee  of  a  policy  of  insurance  is  the 
owner,  and  can  alone  maintain  an  action  upon  it  f  but  the 
party  to  whom  the  loss  is  made  payable  in  the  policy  may 
sue  in  his  own  name,  if  not  assigned,  sold,  or  mortgaged  f 
and  if  the  assignment  by  the  owner  is  to  two  or  more 
creditors,  each  of  such  assignors  is  a  necessary  party 
plaintiff  in  a  suit  on  the  policy.^  Where  the  policy  of 
insurance  on  a  building  being  erected  is  taken  in  the 
name  of  the  owner,  with  a  clause  providing  for  contrac- 
tor's insurance  for  thirty  days,  a  fire  loss  having  occurred 
within  thirty  days,  the  contractor  can  sue  in  his  own 
name.^ 

In  equitable  action  to  establish  mechanic's  lien  and  to 
foreclose  the  same,  all  persons  claiming  a  mechanic's  or  a 

son,  12  N.  Y.   Super.  Ct.  Rep.    (5  v.   State  Ins.  Co.,  16  Ore.  283,  18 

Duer)  168.  Pac.  466. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  Community  property  covered  by 
Proc,  §  726.  the    policy,    the    wife    is    properly 

2  Ripley  V.  Aetna  Ins.  Co.,  29  joined  with  the  husband  as  plain- 
Barb.  (N.  Y.)  552,  17  How.  Pr.  tiff. — Hedican  v.  Pennsylvania  Fire 
444;  reversed  on  other  points,  30  Ins.  Co.,  21  Wash.  488,  58  Pac.  574. 
N.  Y.  136,  86  Am.  Dec.  362;  Ennis  3  Frink  v.  Hampden  Ins.  Co.,  45 
V.  Harmony  Fire  Ins.  Co..  16  N.  Y.  Barb.  (N.  Y.)  384,  1  Abb.  Pr.  N.  S. 
Super.  Ct.  Rep.  (3  Bosw.)  516.  See  343,  31  How.  Pr.  30;  P  e  c  k  v. 
Bodle  V.  Chenango  County  Mut.  Girard  Fire  &  Marine  Ins.  Co.,  16 
Ins.  Co.,  2  N.  Y.  53;  Bidwell  v.  Utah  121,  67  Am.  St.  Rep.  600,  51 
Northwestern    Ins.    Co.,    19    N.    Y.  Pac.  255. 

179.  4  German-American    Ins.    Co.    v. 

Assignment   to   successor   in   i-n-  Johnson,  4  Kan.  App.  357,  45  Pac. 

terest,   with   the   consent   of  .  t  h  e  972. 

insurance   company,    suit   may   be  sGer  mania  Fire  Ins.   Co.   v. 

maintained   on   the   policy   in   the  Thompson,    43    Kan.    567,   23    Pac. 

name  of  such  assigner. — Chrisman  608. 

812 


Ch.  III.]  PARTNERS — CODE  AND   COMMON-LAW   RULE.  §  601 

material  man's  lien^  upon  the  property  may  join  as  plain- 
tiffs in  the  action."^ 

§  601.  Partners.  While  the  common-law  rule  which 
requires  that  in  actions  for  the  benefit  of  a  partnership, 
all  the  partners  must  be  joined  as  plaintiffs,  has  been 
carried  into  the  procedural  codes,  in  California  it  is  espe- 
cially provided  that  coparceners  may  jointly  or  severally 
commence  or  defend  a  civil  action  for  the  enforcement  or 
protection  of  the  rights  of  such  party.^ 

Under  the  common-law  rule  all  the  partners  should  join 
in  an  action  for  the  collection  of  a  partnership  debt,  as 
for  the  recovery  of  the  price  of  goods  sold  by  the  firm. 
It  can  not  be  maintained  in  the  name  of  one,  although  he 
is  the  general  agent  of  the  firm.^  The  same  rule  prevails 
in  an  action  to  recover  against  an  innkeeper  for  the  loss 
of  goods  f  or  in  an  action  for  damages  for  a  deceit  in  the 
purchase  of  real  estate  for  partnership  purposes  ;^  but  a 
deed  conveying  land  to  the  members  of  a  partnership 
enables  one  partner  to  maintain  ejectment  against  an 
intruder.^  Whether  a  dormant  or  special  partner  is  a 
necessary  party  plaintiff,  is  a  question  of  practice  which 

6  Barber    v.    Reynolds,    33    Cal.  2  Halliday  v.  Doggett,  36  Mass. 

497;    Fitch  v.  Creighton,  65  U.  S.  (19  Pick.)    359;    Briggs  v.  Briggs, 

(24  How.)   195,  16  L.  Ed.  596.  20  Barb.  (N,  Y.)  477;  affirmed,  15 

See   Bloom's   Mechanics'   Liens,  ^-   ^-   ^'^1-    ^weet  v.   Bradley,  24 

§§  100    101  ^&Th.    (N.   Y.)    549;    Hyde  v.  Van 

,^'',_        r.  ^   r^  ^     r^-         Valkenburgh,  1  Daly  (N.  Y.)  416; 
-  See  Kerrs  Cyc.  Cal.  Code  Civ.      ^^^j^^^,   ^    ^^^.^^^   ^^   ^^^^    p^ 

Proc.  2d  ed..  §1195;  Consolidated       (n.  Y.)    162;    Bridge  v.  Parson.  7 
Supp.    1906-1913,   p.    1791;    Malone      n.  Y.   Super.  Ct.  Rep.    (5   Sandf  ) 


V.  Big  Flat  Gold  Min.  Co.,  76  Cal. 


210. 


578,    582,    18    Pac.    772;    Booth    v.  3  Needles    v.    Howard,    1    E     D 

Pendola,    88    Cal.    36,    42,    23    Pac.  gmith    (N    Y  )    54 

200,  25  Pac.  1101.     See  Parker  v.  4  Medbury  v.  Watson,  47  Mass. 

Savage   Placer   Min.    Co..   61    Pac.  (g  Mete.)  246,  39  Am.  Dec.  726, 

348;  Curnow  v.  Happy  Valley  Blue  5  Smith  v.  Smith,  SO  Cal.  323,  21 

Gravel    &    Hydraulic   Co.,    68    Cal.  p^c.  4,  22  Pac    186,  549 

262,  266,  9  Pac.  149.  ^s  to  what  title  or  interest  will 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  support    ejectment,   see   note    IS 

Proc,   §  384.  L.  R.  A,  781. 

813 


§  602  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

lias  been  answered  differently  in  different  states.  Many 
of  the  states  have  enacted  statutes  which  dispense  with 
the  joinder  of  either  the  dormant  or  special  partner.** 
In  New  Yofk,  however,  it  would  seem  that  a  dormant 
partner  is  a  necessary  party  plaintiff."^  But  when  one 
partner  is  a  member  of  two  firms,  one  of  which  sues  the 
other,  he  may  elect  to  be  either  plaintiff  or  defendant.^ 
An  agreement  to  divide  the  gross  earnings  of  a  venture 
does  not  necessarily  constitute  the  parties  to  it  partners  f 
actual  intention  is  necessary  to  constitute  a  partnership 
inter  se.^°  Where  one  of  the  partners  has  died,  the  rule 
under  the  Code  and  at  the  common  law  was  that  the  right 
remained  in  the  surviving  partners  to  sue  on  the  firm 
demands,  without  joining  the  personal  representatives  of 
the  deceased  partner.  The  surviving  partners  might 
assign  the  firm  demands,  even  to  the  representatives  of 
the  deceased,  in  which  case  the  assignee  would  be  the 
proper  party  plaintiff.^^ 

§  602.  Persons  authorized  by  statute.  In  all  those 
cases  in  w^hich  a  statute  gives  a  cause  of  action,  and 
designates  the  person  or  persons  who  may  sue,  such  per- 
son or  persons  alone  may  maintain  an  action  thereunder.^ 
And  we  shall  see  presently-  that  when  the  statute  author- 

6  Mitchell  V.  Dall,  2  Harr.  &  G.  As  to  what  constitutes  a   part- 

(Md.)    159,  171;    Clarkson  v.  Car-  nership,  see  note  115  .\vn.  St.  Rep. 

ter,  3  Cow.    (N.  Y.)    84;    Clark  v.  414. 

Miller,    4   Wend.    (N.    Y.)    629;  Sharing  profits  in  a  single  ven- 

Leveck  v.  Shaftoe,  2  Esp.  468.  ture    constitutes   a    partnership. — 

T  Secor  V.  Keller,  11  N.  Y.  Super.  s  o  u  1  e  v.   Hayward,   1   Cal.   345; 

Ct.  Rep.    (4   Duer)    416.    See  Van  Llewelyn  v.  Levi,  157  Cal.  31,  106 

Valen  v.  Russell,  13  Barb.  (N.  Y.)  Pac.  219. 

590;    Brown  v.  Birdsall,   29   Barb.  ^^^^^    ^^    agreement    to    share 

(N.  Y.)   549;   Hurlburt  v.  Post,  14  ^^^^.^^^  ^^  ^^.^^^^  ^  partnership,  see 

N.  Y.   Super.  Ct.  Rep.   (1  Bosw.)  ^^^^^  ^g  ^_   r_  a.  (N.  S.)  963. 

11  Brown  v.  Allen,  35  Iowa  306, 


311;  Boys  v.  Vilas,  18  Wis.  169. 


s  Cole  V.  Reynolds,  18  N.  Y.  74, 
78. 

9  Wheeler  v.  Farmer.  38  Cal;  203.  i  Romero  v.  Atchison,  T.  &  S.  F. 

10  Id.;    Hicks   V.   Post.    154    Cal.      R-  Co..  ll  N.  M.  679.  72  Pac.  37. 
27,  96  Pac.  880.  2  See.  post.  §  612. 

814 


Ch,  III.]  PRINCIPAL  AND  AGENT.  §  603 

izes  or  empowers  a  person  who  has  a  claim  or  cause  of 
action  to  authorize  another  to  bring  suit,  such  other  can 
maintain  an  action  for  the  use  and  benefit  of  the  owner 
without  an  assignment  of  such  claim  or  cause  of  action.^ 
The  California  Code  of  Civil  Procedure  provides  that 
where  a  person  is  authorized  by  statute  to  sue,  he  may 
maintain  an  action  without  joining  with  him  the  person 
for  whose  benefit  the  action  is  prosecuted.'*  Other  pro- 
cedural codes  have  similar  provisions. 

§  603.  Principal  and  agent.  The  general  rule  of  law 
is  that  where  an  agent  has  made  a  contract,  either  express 
or  implied,  in  the  name  of  the  principal,  the  latter  alone 
is  the  proper  party  to  institute  and  prosecute  an  action 
thereon,  being  the  ''real  party  in  interest."^  A  mere 
"naked  agent"  can  not  sue.-  Thus,  an  agent  who  loans 
the  money  of  his  principal  and  takes  the  contract  for 
repayment  in  the  name  of  such  principal,  can  not  himself 
sue  to  recover  back  the  money.^  If,  on  the  other  hand, 
the  contract,  whether  verbal  or  written,  is  entered  into 
by  the  agent,  in  his  own  name,  without  disclosing  his 
principal,  either  the  principal  or  the  agent  may  sue 
thereon.  And  the  same  is  true  if  the  contract  is  entered 
into  by  the  agent  in  his  own  name,  and  the  fact  of  the 

3  Watson  V.  Watson,  49  Mich.  Tomlinson,  1  E.  D.  Smith  (N.  Y.) 
540,  14  N.  W.  489.  364;   Fish  v.  Wood,  4  E.  D.  Smith 

4  Kerr's     Cyc.     Cal.     Code     Civ.      (N.  Y.)  327. 

Proc,  §  369.  More  than  a  "naked  agent,"  as 

1  See,  ante,  §§  583  et  seq.  where  he  has  advanced  money  on 

2  Lineker  v.  Ayeshford,  1  Cal.  the  goods  shipped  to  his  principal, 
75;  Phillips  v.  Henshav/,  5  Cal.  or  the  like,  he  can  sue  in  his  own 
509;  Tustin  Fruit  Assoc,  v.  Earl  name. — Santillas  v.  Moses,  1  Cal. 
Fruit  Co.,  6  Cal.  Unrep.  37,  53  Pac.  94. 

693;   Law  v.  Columbus  Ins.  Co.,  2  Something  more  than  mere 

N.  Y.   Code  Rep.  65;    St.  John  v.  powers  of  naked  agent  requisite  to 

Griffith,  2  Abb.  Pr.  (N.  Y.)  198,  13  enable  an  agent  to  sue  in  his  own 

How.  Pr.  59;    Stanton  v.  Camp,  4  name. — Bell    v,    Tilden,     16    Hun 

Barb.  (N.  Y.)  274;  Haight  v.  Sah-  (N.  Y.)  346. 

ler,  30  Barb.  (N.  Y.)  218;  Erickson  3  Swift  v.  Swift,  46  Cal.  266,  269; 

V.   Compton,   6   How.   Pr.    (N.   Y.)  Chin  Kem  You  v.  Ah  Joan,  75  Cal. 

471;    Union   India   Rubber    Co.   v.  124,  16  Pac.  705. 

815 


§604 


CODE  PLEADING  AND   PRACTICE. 


[Pt.  HI, 


agency  was  known  to  the  contracting  parties  at  the  time 
of  the  making  of  the  contract."  Thus  an  agent  may  main- 
tain an  action  on  a  promissory  note  payable  to  himself  as 
agent.^  So  also  the  real  owner  of  goods  may  maintain 
an  action  concerning  them  in  his  own  name,  and  parol 
evidence  is  admissible  to  show  the  agency.® 

§  604.  Promissory  notes — Plaintiffs  in  actions  on. 
Under  the  rule  of  the  procedural  codes  requiring  an 
action  to  be  brought  and  prosecuted  in  the  name  of  the 
real  party  in  interest,^  in  actions  on  promissory  notes  the 
"real  party  in  interest"  by  whom  the  action  is  to  be 
brought  and  prosecuted  is  the  party  who  is  entitled  to 
receive  the  money  due  thereon.^   The  holder  of  such  note 


4  CAL. — Ruiz  V.  Norton,  4  Cal. 
855,  358,  60  Am.  Dec.  618,  4  Cal. 
359;  Crosby  v.  Watkins,  12  Cal.  88; 
Thurn  v.  Alta  Tel.  Co.,  15  Cal.  472. 
IND.— Rowe  V.  Rand,  111  Ind.  206, 
12  N.  E.  377.  IOWA— Frear  v. 
Jones,  6  Iowa  169.  MASS.— Buf- 
fum  V.  Chadwlck,  8  Mass.  103;  Fi- 
field  V.  Adams,  33  Mass.  (16  Pick.) 
381;  Tyler  v.  Freeman,  57  Mass. 
(3  Cush.)  261;  Colburn  v.  Phillips, 
79  Mass.  (13  Gray)  64;  Rhoades  v. 
Rlackiston,  106  Mass.  334,  8  Am. 
Rep.  333.  MINN.— Cremer  v.  Wim- 
mer,  40  Minn.  511,  42  N.  W.  467. 
N.  Y.— Ludwig  V.  Gillespie,  105 
N.  Y.  653,  1  Silv.  Ct.  App.  399,  11 
N.  E.  835,  affirming  51  N.  Y.  Super. 
Ct.  Rep.  (19  Jones  &  S.)  310; 
Taintor  v.  Pendergast,  3  Hill 
(N.  Y.)  72,  38  Am.  Dec.  618;  Hicks 
V.  Whitmore,  12  Wend.  548;  St. 
John  V.  Griffith,  2  Abb.  Pr.  198,  13 
How.  Pr.  59;  Morgan  v.  Keid,  7 
Abb.  Pr.  215;  Van  Lien  v.  Byrnes, 
1  Hilt.  133.  OHIO— Hall  v.  Paine, 
14  Ohio  St.  417.  W.  VA.— Dietz  v. 
Providence-Washington  Ins.  Co.,  31 
W.  Va.  851,  13  Am.  St.  Rep.  909, 
8  S.  E.  616.     ENG.— Seins  v.  Bond, 


5  Barn.  &  Ad.  389,  27  Eng.  C.  L. 
168,  110  Eng.  Repr.  834;  Barn- 
stable V.  Poole,  1  C,  M.  &  R.  410; 
Usparicha  v.  Noble,  13  East  332, 
104  Eng.  Repr.  81;  Higgins  v. 
Senior,  8  Meis.  &  W.  834. 

5  Ord  V.  McKee,  5  Cal.  515;  Con- 
siderant  v.  Brisbane,  22  N.  Y.  389; 
Reilly  v.  Cook,  13  Abb.  Pr.  (N.  Y.) 
255,  22  How.  Pr.  93. 

6  Union  India  Rubber  Co.  v. 
Tomlinson,  1  E.  D.  Smith  (N.  Y.) 
364. 

1  See,  ante,  §§  583-587. 

2  Foltier  v.  Schroeder,  19  La. 
Ann.  17,  92  Am.  Dec.  521;  Stevens 
V.  Hannan,  86  Mich.  305,  24  Am. 
St.  Rep.  125,  48  N.  W.  951;  Elm- 
quist  V.  Markoe,  45  Minn.  305,  47 
N.  W.  970;  Cummings  v.  Morris, 
25  N.  Y.  625,  affirming  16  N.  Y. 
Super.  Ct.  Rep.  (3  Bosw.)  560; 
Selden  v.  Pringle,  17  Barb.  (N.  Y.) 
458,  460;  Hastings  v.  McKinley,  1 
E.  D.  Smith  (N.  Y.)  273;  affirmed, 
1  Sheld.  Notes  173;  Thompson  v. 
Cartwright,  1  Tex.  87,  46  Am.  Dec. 
95;  Buzzell  v.  Cummings,  61  Vt. 
213,  18  Atl.  93. 

Note  to  bearer  or  payee,  holder 


816 


ch.  III.] 


PROMISSORY  NOTES — PLAINTIFFS. 


§604 


is  presumed  to  be  the  o^vner,  in  the  absence  of  evidence 
to  the  contrary,  and  prima  facie  entitles  him  to  sue 
thereon.2  The  fact  that  the  plaintiff  has  not  the  actual 
possession  of  the  note  sued  upon  does  not  affect  his  rights 
to  recover  upon  it,  if  he  be  the  real  owTier,  althougli  the 
note  is  in  the  possession  of  the  defendant.^  Conversely 
the  mere  holder  of  a  note,  without  an  interest  in  or  title 
thereto,  can  not  maintain  an  action  thereon.^ 

A  party  holding  a  promissory  note,  as  trustee  for  him- 
self and  others,  may  recover.^    So  a  bona  fide  indorsee 


may  maintain  suit  thereon  without 
setting  up  or  proving  assignment. 
— Bitzer  v.  Wagar,  83  Mich.  223, 
47  N.  W.  210. 

3  CAL. — Gusher  v.  Leavitt,  5  Cal. 
160,  63  Am.  Dec.  116;  Price  v.  Dun- 
lap,  5  Cal.  483  (payee  suing  is 
prima  facie  owner)  ;  McCann  v. 
Lewis,  9  Cal.  246  (ownership  prima 
facie  shown  by  possession) ;  Cor- 
coran V.  Doll,  32  Cal.  82,  88;  Curtis 
V.  Sprague,  51  Cal.  239  (indorsee 
for  collection  can  sue  in  his  own 
name  without  joining  real  owner) ; 
Flanagan  v.  Brown,  70  Cal.  254, 
259,  11  Pac.  706  (endorsee  for  col- 
lection may  sue  in  own  name) ; 
Eahns  v.  Crosier,  101  Cal.  260,  262, 
35  Pac.  873  (allegation  of  endorse- 
ment sufficient  to  show  endorsee's 
right  to  sue) ;  Giselman  v.  Starr, 
106  Cal.  651,  658,  40  Pac.  8  (payee 
suing  prima  facie  owner).  MD. — 
Herrick  v.  Brownside,  56  Md.  439. 
MONT.— Meadowcraft  v.  Walsh,  15 
Mont.  544,  39  Pac.  914.  N.  Y.— 
Hays  V.  Hathom,  74  N.  Y.  486; 
Farrington  v.  Park  Bank,  39  Barb. 
645;  Mottram  v.  Mills,  3  N.  Y. 
Super.  Ct.  Rep.  (1  Sandf.)  37; 
James  v.  Chalmers,  7  N.  Y.  Super. 
Ct.  Rep.  (5  Sandf.)  52;  affirmed,  6 
N.  Y.  209;  Wiltsie  v.  Northam,  18 
N.   Y.   Super.  Ct.   Rep.    (5   Sandf.) 


428.  N.  C. — Meadows  v.  Cozort,  76 
N.  C.  453  (indorsee  suing  prima 
facie  owner) ;  Robertson  v.  Dunn, 
87  N.  C.  191.  OKLA.— Berry  v. 
Barton,  12  Okla.  221,  66  L.  R.  A. 
513,  71  Pac.  1074  (presumption  of 
ownership  in  payee  suing).  FED. — 
Halstead  v.  Lyon,  2  McL.  226,  Fed. 
Cas.  No.  5968;  Locket  v.  Davis,  3 
McL.  101,  Fed.  Cas.  No.  12203. 

See,  also,  ante,  §  595;  post,  §  611. 

Note  of  wife,  her  separate  prop- 
erty, may  be  sued  by  her  alone, 
without  joining  her  husband. — Cor- 
coran V.  Doll,  32  Cal.  82. 

4  Curtis  V.  Sprague,  51  Cal.  239; 
McClusky  V.  Gerhauser,  2  Nev.  47, 
90  Am.  Dec.  510;  Selden  v.  Pringle, 
17  Barb.  (N.  Y.)  458,  468;  Hastings 
V.  McKinley,  1  E.  D.  Smith  (N.  Y.) 
273;  affirmed,  1  Seld.  Notes  173. 

5  Parker  v.  Totten,  10  How.  Pr. 
(N.  Y.)  233;  Clark  v.  Phillips,  21 
How.  Pr.  (N.  Y.)  87;  Prall  v. 
Hinchman,  13  N.  Y.  Super.  Ct.  Rep. 
(6  Duer)  351. 

6  Palmer  v.  Goodwin,  5  Cal.  458; 
Hamilton  v.  McDonald,  18  Cal.  128; 
Fletcher  v.  Derickson,  16  N.  Y. 
Super.  Ct.  Rep.  (3  Bosw.)  181.  See 
Parker  v.  Totten,  10  How.  Pr. 
(N.  Y.)  233;  White  v.  Brown,  14 
How.  Pr.  (N.  Y.)  282;  Clark  v. 
Phillips,  21  How.  Pr.  (N.  Y.)  87. 


I  Code  PI.  and  Pr.— 52 


817 


§  605  CODE  PLEADING  AND  PRACTICE.  [Ft.  Ill, 

may  recover.*^  Or  the  indorsee  of  a  note  for  a  considera- 
tion to  be  paid  after  collection  may  maintain  action/ 
Indorsement  of  a  note  for  collection  is  held  to  pass  such 
title  as  enables  the  indorsee  to  sue  in  his  own  name,  as 
the  real  party  in  interest.^ 

§  605.      Quo     WAERANTO USURPATION     OF     A     FRANCHISE. 

The  common- law  writ  of  scire  facias  is  abolished  by  the 
procedural  codes, ^  and  that  function  of  the  writ  which 
was  to  ascertain  and  enforce  forfeitures  of  corporate 
franchises  or  charters  is  now  performed  by  the  wiit  of 
quo  warranto.  Such  an  action  must  be  brought  by  the 
attorney-general  or  other  public  prosecuting  officer-  in 
the  name  of  the  state  ;^  and  the  action  may,  and  some- 
times must,  be  brought  upon  his  own  initiative,  or  upon 
the  relation  of  a  private  individual,^  and  where  the  action 
is  brought  upon  the  relation  of  a  private  party  the 
attorney-general,  or  other  public  prosecuting  officer, 
may  require  such  indi\'idual  to  give  security  for  costs."' 
The  purpose  of  such  a  remedy  is  the  protection  of  the  pub- 
lic and  the  benefit  of  the  community.®  Where  the  inter- 
ests of  the  people  at  large  are  affected  the  action  must  be 
brought  in  the  name  of  the  people,  in  the  manner  above 
pointed  out;  but  when  the  interests  affected  are  re- 
stricted to  a  particular  community,  as  to  a  city  gi"antiiig 
a  franchise  to  a  street  railway  company  to  use  the  streets 
of  the  city,  such  city  is  a  proper  party  plaintiff,  under 

T  Himnielman  v.  Hotaling,  40  Cal.  i  See  Kerr's  Cyc.  Cal.  Code  Civ. 

Ill,  5  Am.  Rep.  600;   Harpending  Proc,  §802. 

V.  Daniel,  80  Ky.  449;  Elmquist  v.  2  See  Kerr's  Cyc.  Cal.  Code  Civ. 

Markeo,    45   Minn.   305,   47   N.   W.  Proc,  2d  ed.,  §803;    Consolidated 

970.    Potter  v.   Chadsey,    16   Abb.  Supp.  1906-1913,  p.  1627. 

Pr.  (N.  Y.)  146;  Cummings  v.  Mor-  3  ,, 
ris,   16   N.   Y.    Super.   Ct.  Rc-p.    (3 

Bosw.)  560.  *^'^- 

8  Cummings  v.  Morris,  25  N.  Y.  ^  I^-.  §  810- 

625.  6  See  Toncray  v.  Budge,  14  Idaho 

9  See   authorities    cited,    post,      621,  95  Pac.  26. 
§610. 

818 


ell.  III.]  USURPATION  OF  OFFICE.  §  606 

a  statute"  autliorizing  such  action  to  be  brouglit  and 
maintained  by  any  person  claiming  an  interest  adverse 
to  the  franchise  of  such  street  railway,  which  is  the  sub- 
ject of  the  action;^  but  under  a  statute  in  such  case  pro- 
viding that  the  action  may  be  commenced  and  prosecuted 
by  the  prosecuting  attorney  of  the  proper  county,^  he 
must  show  that  the  action  is  instituted  and  prosecuted  at 
the  request  of  the  municipal  authorities  of  the  city 
aggrieved.^® 

§  606,    Usurpation  of  office.    What  has  been  said 

in  the  preceding  section  relative  to  the  commencement  of 
an  action  in  the  nature  of  quo  warranto  for  the  usurp- 
ation of  a  franchise,  applies  also  in  such  an  action  based 
upon  the  usurpation  of  an  office ;  and  the  attorney-general 
may  bring  the  action  on  behalf  of  the  people  to  test  an 
incumbent's  right  to  hold  the  office,  although  the  statute 
confers  upon  any  elector  of  the  county  the  right  to  con- 
test the  incumbent's  election;^  because  the  proceeding  is 
for  the  protection  of  the  general  public  and  the  benefit 
of  the  particular  community,  rather  than  for  the  grati- 
fication or  protection  of  any  particular  individual  in  the 
community,  except  for  the  protection  of  the  person  en- 
titled to  the  office.-  The  person  entitled  to  the  office  may 
join  in  the  proceeding  with  the  people;^  and  while  he 
must  obtain  the  consent  of  the  attorney-general,  and  the 
people,  eo  nomine,  are  parties  to  the  writ,  such  party,  as 

7  As    Kansas    Gen.    Stats.    1901,  2  Toncray    v.    Budge,    14    Idaho 
§  5150.                                                             621,  95  Pac.  26. 

8  See  Olathe,  City  of.  v.  Missouri  Contrary  to  purpose  of  writ  of 
&  K.  Interurban  R.   Co.,  78   Kan.      ^^^  warranto,  or  its  modern  form 
193   96  Pac   4'>                                           °^  ^  '^^'^^  *^  ^^^®  nature  of  quo  war- 
ranto,  to  allow   the   action   to   be 

V.  As  in   Washington,  Ball.   Ann.  y^^ought  and  prosecuted  by  any  and 

Codes  &  Stats.,  §  5781.  gygj.y  elector.— Toncray  v.  Budge, 

10  State  ex  rel.  Attorney-General  14  Idaho  621,  95  Pac.  26. 
V.  Seattle  Gas  &  Electric  Co.,  28  3  people  ex  rel.  Crane  v.  Ryder. 

Wash.  488,  68  Pac.  946,  70  Pac.  114.  12  N.  Y.  433;  People  ex  rel.  Hawes 

1  People  ex  rel.  Budd  v.  Holden,  v.  Walker,  23  Barb.  (N.  Y.)  304,  2 

23  Cal.  123.  Abb.  Pr.  421. 

819 


§  60G  CODE  PLEADING  AND  PRACTICE.  [Pt.  Jli. 

relator,  is  none  the  less  the  real  party  in  interest,  the 
object  of  the  proceeding  being  to  carry  out  and  enforce 
any  final  judgment  in  his  favor.^  It  has  been  said  that  a 
defeated  candidate,  though  not  entitled  to  the  office,  may, 
under  the  Colorado  code,'  maintain  the  proceeding 
against  an  opponent  who  is  entitled  to  the  office,*^  and  the 
court  may  determine  whether  the  respondent  is  rightfully 
entitled  to  exercise  the  functions  of  the  office  •''  but  under 
other  statutes  a  different  rule  prevails. "^  The  ineligibility 
of  the  successful  candidate  does  not  give  a  minority  can- 
didate any  claim  to  the  office. '^  While  a  writ  of  quo  war- 
ranto is  a  writ  of  grace,  and  not  a  writ  of  right,  which 
can  be  obtained  by  permission  of  attorney-general  only,^^ 
yet  it  has  been  said  that  where  the  attorney-general 
refuses  to  act,  a  person  claiming  to  have  been  elected  to 
an  office  may,  by  leave  of  court,  bring  quo  warranto  on 
his  own  relation,  in  those  cases  where  he  has  no  other 
remedy. ^^  And  a  relator  not  claiming  the  office,  it  has 
been  said,  may,  by  leave  of  the  court,  become  relator, 
where  he  is  acting  in  good  faith.^- 

4  People  ex  rel.  McCarty  v.  Wil-  Pac.  668;  Heney  v.  Jordan  (Cal.), 
son,  6  Cal.  App.  122,  91  Pac.  661.  175  Pac.  402;   Campbell  v.  Free,  7 

5  Colo.  Civ.  Code,  §  289.  Cal.  App.  151,  93  Pac.  1060;   Wood 

6  Londoner  v.  People,  15  Colo.  v.  Bortling,  16  Kan.  109;  Privett  v. 
557,  26  Pac.  135.  Bickford,  26  Kan.  52,  40  Am.  Rep. 

7  Dunton  V.  People  ex  rel.  Aiken,  301;  Hudson  v.  Conklin,  77  Kan. 
36  Colo.  128,  87  Pac.  540;  People  764,  93  Pac.  585;  Sanders  v.  Rice, 
ex  rel.  Stoop  v.  Lawson,  36  Colo.  Attorney-General  (R.  I.),  L.  R.  A. 
442,  87  Pac.  543;  People  ex  rel.  1918C,  1153,  102  Atl.  914.  See 
Amos  V.  Burrell,  36  Colo.  444,  87  notes  124  Am.  St.  Rep.  211-219;  13 
Pac.  543.  L.  R.  A.  (N.  S.)  1013-1016;  L.  R.  A. 

8  State  ex  rel.  Clawson  v.  Bell,  1918C,  1157-8. 

169  Ind.  61,  124  Am.  St.  Rep.  203,  lo  Lambe  v.  Webb,  151  Cal.  451, 

13  L.  R.  A.  (N.  S.)   1013,  82  N.  E.  91    Pac.    646;    De  Vigil   v.   Stroup, 

69;    Hudson   v.   Conklin,    77    Kan.  15  N.  M.  544,  110  Pac.  830. 

764,  93  Pac.  585.  n  State  ex  rel.  McMillan  v.  Sad- 

9  Saunders  v.  Haynes,  13  Cal.  ler,  25  Nev.  131,  83  Am,  St.  Rep. 
145;   Searcy  v.  Grow,  15  Cal.  118;  573,  58  Pac.  284. 

Crawford   v.   Dunbar,   52   Cal.   36;  12  Bonynge  v.  Frank,  89  N.  J.  L. 

People  ex  rel.  Drew  v.  Rodgers,  239,  Ann.  Cas.  1918D,  211,  98  Atl. 
118  Cal.   393,  396,  46   Pac.  740,  50      456. 

820 


ell.  III.]  ACTIONS  BY  STATE,  ETC.  §§  607,  608 

§  607.  Sheriff — Action  by.  A  sheriff  who  has  levied 
an  attachment,  by  virtue  of  proceedings  therefor  and  the 
process,  can  not  maintain  an  action  in  his  own  name  for 
the  recover}'  of  the  debt  upon  which  the  attachment  was 
issued  and  levied.^ 

§  608.  State  or  United  States — Actions  by.  The 
attorney-general  of  the  state  may  file  an  information  in 
the  nature  of  a  bill  in  chancery,  to  annul  a  patent  to 
lands  granted  by  the  state  to  an  individual,  in  a  case  in 
which  the  matter  involved  in  the  suit  immediately  con- 
cerns the  rights  and  interests  of  the  state.  ^  In  an  action 
to  annul  a  patent  for  land,  the  state  as  well  as  persons 
having  a  right  to  the  land  may  be  joined  as  plaintiffs  ;- 
but  if  the  state  has  no  interest  in  the  matter,  the  action 
can  not  be  sustained.^  Actions  for  the  recovery  of  an 
auctioneer's  duty  are  properly  brought  in  the  name  of 
the  state.*  The  United  States  of  America  can  sue  in  that 
name  in  chancery  without  putting  forward  any  public 
officer  who  could  be  called  on  to  give  discovery  on  a  cross- 
bill.^ 

As  to  parties  plaintiff  in  quo  See  Wilson  v.  Castro,  31  Cal.  420, 
warranto,  see  note  Ann.  Cas.  427;  Gill'^spie  v.  Gouly,  152  Cal. 
1918D   214  6^3'  6^'*'  ^3  P^c-  ^^'^''   Toomey  v. 

o   ,  ,  xi         Tc  ,u   J      1  /^  1   1A'       Knobloch,  8  Cal.  App.  585,  587,  97 
1  Sublette  v.  Melhado,  1  Cal.  lOo.                        '  f  i  .         i 

Pac.  530. 

1  People  ex  rel.  Pixley  v.  Strat-  ^^^^^^^  ^^^^,    ^^    ^^^,    ^^^    ^^ 

ton,    25    Cal.    242,    245;    People   v.  named.— People   ex   rel.    Pixley   v. 

Gold  Run  Ditch  &  Min.  Co.,  66  Cal.  stratton,  25  Cal.  242;  State  ex  rel. 

138,  152,  56  Am.  Rep.  80,  88,  4  Pac.  Detienne  v.  Vandalia,  City  of,  119 

1152;    People  ex  rel.  Love  v.  Cen-  Mo.  App.  406,  419,  94  S.  W.  1009, 

ter,  66  Cal.  551,  566,  5  Pac.  263,  6  1013 ;    state   v.   Franklin,   133   Mo. 

Pac.  481;  People  v.  Truckee  Lum-  App.  486,  493,  113  S.  W.  652. 

her  Co..  116  Cal.  397,  402,  58  Am.  3  People  ex  rel.  Pixley  v.  Strat- 

St.    Rep.   183,   39   L.    R.  A.   581,   48  ton,  25  Cal.  242,  244. 

Pac.  374;  People  v.  Oakland  Water  4  state  v.  Poulterer,  16  Cal.  514; 

Front  Co.,  118  Cal.  234,  239,  50  Pac.  affirmed     on     rehearing,     January 

305.  Term,  1861,  not  reported,  cited  in 

2  People  ex  rel.  Pixley  v.  Strat-  State  v.  Conklin.  19  Cal.  501,  509. 
ton,  25  Cal.  242,  244;  People  ex  5  United  States  of  America  v. 
rel.  Pierce  v.  Morrill,  26  Cal.  336.  Wagner,  L.  R.,  2  Ch.  App.  Cas.  582. 

821 


§§  609,  610 


CODE  PLEADING  AND  PRACTICE. 


[Ft.  Ill, 


§  609.  Suits  against  fire  departments — In  Califor- 
nia. The  California  Code  of  Civil  Procedure  provides 
that  all  causes  of  action  upon  contract,  arising  out  of  or 
pertaining  to  the  administration  of  a  fire  department 
created  by  acts  of  the  legislature  of  the  state,  shall  be 
brought  directly  by  the  municipality  in  which  the  fire 
department  is  situated,  in  its  corporate  name.^ 

§  610.  Sureties  as  plaintiffs.  A  surety  on  a  note  or 
on  an  undertaking,  who  had  paid  the  amount  of  his  lia- 
bility, is  entitled  to  recover  back  the  amount;^  but  where 
the  principal  appeals  and  afterwards  secures  a  reversal 
of  the  judgment  of  his  creditor,  the  surety  can  not  recover 
the  amount  paid  from  the  judgment  creditor.^  Co-sureties 
who  pay  the  debt  of  their  principal  by  giving  their  joint 
and  several  notes  therefor,  must  join  in  a  suit  against  him 
for  reimbursement.^   A  surety  paying  a  debt  for  which 


1  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  390. 

1  See  Nabors  v.  Camp,  14  Ala. 
460;  Williams  v.  Simmons,  22  Ala. 
425;  Gerard  v.  Knapp,  26  111.  App. 
307;  Lodge  v.  Boone,  3  Har.  &  J. 
(Md.)  218;  Kalmbach  v.  Foote,  79 
Mich.  236,  44  N.  W.  603;  Jewitt  v. 
Crane,  13  Abb.  Pr.  (N.  S.)  97,  35 
Barb.  208;  Garr  v.  Martin,  1  Hilt. 
(N.  Y.)  358;  Hirsh  v.  Hunger,  3 
Thomp.  &  C.  (N.  Y.)  290;  Boling 
V.  Young,  38  Ohio  St.  135. 

Alteration  of  note  furnishing 
surety  a  good  defense,  does  not 
necessarily  entitle  him  to  recover 
back  the  money  paid  before  he  dis- 
covered such  alteration.  —  Blakey 
V.  Johnson,  76  Ky.  (13  Bush)  197, 
26  Am.  Rep.  254. 

Can  not  declare  in  tort  in  action 
to  recover  back  money  paid,  in  or- 
der to  evade  the  bankruptcy  laws. 
— Ledbetter  v.  Torney,  33  X.  C. 
294. 


Joint  and  several  bond  executed 
by  principal  and  surety,  payment 
by  surety  extinguishes  bond  and 
surety  can  not  sue  thereon  to  re- 
cover back  the  money  paid. — Cris- 
field  V.  State,  55  Md.  192.  See 
Chester  v.  Bank  of  Kingston,  Ifi 
N.  Y.  336,  affirming  17  Barb.  271. 

Payment  made  under  mistake  of 
fact  may  be  recovered  back.— Cox 
v.  Hill,  73  Tenn.  (5  Lea)  146.  See 
Pass  V.  Grenada  County,  71  Miss. 
426,  14  So.  447. 

Surety  of  bank  cashier  paying 
note  given  to  replace  moneys  lost 
through  laches  of  cashier  can  not 
recover  it  back. — Marigny  v.  Union 
Bank,  12  Rob.  (La.)  283. 

2  Garr  v.  Martin,  20  N.  Y.  306. 

3  See  Chandler  v.  Brainard,  31 
Mass.  (14  Pick.)  285;  Doolittle  v. 
Dwight,  43  Mass.  (2  Mete.)  561; 
Appleton  V.  Bascom,  44  Mass.  (3 
Mete.)  169. 


822 


eh.  III.] 


TRUSTEES  OF  AN  EXPRESS  TRUST. 


^611 


several  persons  are  liable  in  distinct  proportions,  as  prin- 
cipals, must  proceed  by  a  several  action  against  each  upon 
an  implied  assumpsit.* 

§  611.  Tkustees  of  an  express  TRUST — In  land  :  Real 
PAETY  IN  INTEREST.  It  is  especially  provided  in  California, 
and  a  similar  provision  is  found  in  other  procedural 
codes,  that  a  trustee  of  an  express  trust  may  maintain 
an  action  affecting  the  subject-matter  of  the  trust  without 
joining  his  cestui  que  trust,  or  the  "real  party  in  inter- 
est" for  whose  benefit  the  action  is  prosecuted,  with  him 
in  the  action.^  This  rule  applies  with  especial  force  in 
those  cases  in  which  the  subject-matter  of  the  trust  is 
real  estate,  and  the  relation  is  created  by  deeil  inter 
partes,^  by  appointment  of  a  court,^  or  by  operation  of 
law;*  and  that,  too,  whether  the  cestui  que  trust  is  a 
corporation  or  a  voluntary  religious''  or  other  associa- 


4  Chipman  v.  Morrill,  20  Cal.  130. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  369. 

2  Life  tenant  as  trustee  holding 
proceeds  of  estate  under  agree- 
ment that  the  proceeds  should  be 
distributed  among  others  at  her 
death,  may  maintain  action  with- 
out joining  such  others  as  plain- 
tiffs.— Nicholson  v.  Nicholson,  83 
Kan.  223,  109  Pac.  1086. 

Trustee  holding  under  power  to 
sell,  has  no  implied  power  to  main- 
tain an  action  in  his  own  name  to 
enforce  payment.  —  Nelson  v. 
Eaton,  7  Abb.  Pr.  (N.  S.)  305.  But 
see  Nelson  v.  Eaton,  26  N.  Y.  410, 
16  Abb.  Pr.  113. 

Trustee  under  will  suing  to  re- 
cover trust  fund  in  hand  of  another 
must  establish  the  will  in  the  local 
jurisdiction  before  he  can  main- 
tain his  action. — Curtis  v.  Smith, 
6  Hlackf.  537,  Fed.  Cas.  No.  3505. 


3  Appointed  by  court  of  another 
state,  trustee  may  maintain  suit  in 
relation  to  the  trust  property. — 
Pennington  v.  Smith,  69  Fed.  188; 
Toronto  General  Trust  Co.  v.  Chi- 
cago, B.  &  Q.  R.  Co.,  123  N.  Y.  37. 
25  N.  E.  198,  reversing  54  Hun 
(N.  Y.)  641,  4  N.  Y.  Supp.  726; 
Bradford  v.  King,  18  R.  I.  743,  31 
Atl.  166. 

4  See  discussion,  ante,  §  596. 
Purchaser    of    real    property    at 

execution  sale  who  receives  the 
sheriff's  deed  in  his  own  name,  but 
in  reality  for  the  benefit  of  an- 
other, is  a  trustee  of  an  exi)ress 
trust,  and  may  sue  the  tenant  in 
possession  for  the  value  of  the 
use  and  occupation,  without  join- 
ing the  person  for  whose  benefit 
the  purchase  was  made. — Wallvpr 
V.  McCusker.  71   Cal.  595. 

r.  As  to  numerous  parties,  see, 
ante,  §  395. 


823 


§  612  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

tion.*'  But  the  rule  is  not  confined  to  express  trusts  involv- 
ing real  estate. 

^  612.    In  '  *  THING  IN  ACTION, ' '  ETC. :  Real.  pakty  in 

INTEREST.  The  exception  to  the  general  rule  of  the  Code 
requiring  that  all  actions  shall  be  instituted  and  prose- 
cuted by  the  ''real  party  in  interest, "^  set  out  in  the 
preceding  section,  is  not  restricted  to  express  trusts  in 
real  estate,  but  was  manifestly  intended  to  include  all 
cases  in  which  a  person,  acting  in  behalf  of  another, 
enters  into  a  written,  express  contract  with  a  third  per- 
son, either  in  his  individual  name  without  disclosing  his 
agency  and  without  description,  or  in  his  own  name, 
expressly  in  trust  for,  or  on  behalf  of,  or  for  the  benefit 
of,  another,  by  whatever  form  of  expression  such  trust 
is  declared,- — although  not  technically  what  would,  at 
common  law,  have  been  called  a  ''trustee  of  an  express 
trust, '  '^ — and  he  may  maintain  a  suit  upon  such  contract 
in  his  own  name,  under  the  above  provision  of  the  Cali- 
fornia code,  and  under  similar  provisions  in  other  pro- 
cedural codes,-*  although  there  are  cases  holding  the 
contrar}^^    We  have  already  seen  that  where  the  agent 

«  Shipton  V.  Norrid,  1  Colo.  404.  N.    W.     335.       MO.— Harrigan    v. 

1  See,  ante,  §§  583-587.  Welch,  49  Mo.  App.  496.     N.  Y.— 

2  Considerant    v.     Brisbane,     22  Considerant  v.  Brisbane,  22  N.  Y. 
N   y    389  389;    Melcher  v.  Kreiser,  28  App. 

3Cremer  v.  W^immer,   40  Minn.  Div.    362,    51    N.    Y.    Supp.    249; 

511,  42  N.  W.  467.  Schipper  v.   Milton,   51   App.   Div. 

4  See,  among  many  other  cases:  522,  64  N.  Y.  Supp.  935;   affirmed, 

CAL.  — Walker    v.    McCusker,    71  169  N.  Y.  583,  62  N.  E.  1100;  Ladd 

Cal.    594,    12    Pac.    723;    Anson   v.  v.  Arkell,  37  N.  Y.  Super.  Ct.  Rep. 

Townsend,  73  Cal.  415,  419,  15  Pac.  (5  Jones  &  S.)    35.     S.  D.— Bran- 

49;    Giselman    v.    Starr.    106    Cal.  non  v.  White  Lake  Township,  17 

657,  40  Pac.  8;   Los  Robles  Water  S.   D.   83,  95  N.   W.   284.     FED  — 

Co.'v.  Stoneman.  146  Cal.  204,  79  Albany  &  R.  Iron  &  Steel  Co.  v. 

Pac.  880;  Anglo-California  Bank  v.  Lunberg,  121  U.  S.  451,  30  L.  Ed. 

Cerf.  147  Cal.   384,  81   Pac.   1077;  982,    7    Sup.    Ct.    Rep.    958;    Weed 

Tandy  v.  Walsch,  154  Cal.  108,  97  Sewing  Machine  Co.  v.  Wicks,   3 

Pac.  69.     MINN.— Cremer  v.  Wim-  Dill.  261;  Fed.  Cas.  No.  17348. 
mer,  40  Minn.  511,  42  N.  W.  467;  5  See,  among  other  cases,  Rav-- 

Close  V.  Hodges,  44  Minn.  204,  46  lins  v.  Fuller,  31  Ind.  255;  Mitchell 

824 


eh.  III.]  TRANSFER  FOR  COLLECTION.  §  612 

contracts  in  the  name  of  his  princlj)al,  he  can  not  main- 
tain a  suit  on  the  contract.*'  The  various  relations  in 
which  a  person  becomes  the  trustee  of  an  express  trust 
are  so  numerous  that  they  can  not  be  discussed  and  the 
cases  cited  in  this  connection,  and  we  must  be  content 
with  a  reference  to  where  the  cases  are  collected.'^ 

Endorsement  and  transfer,  merely  for  collection,  with- 
out parting  with  the  title  and  interest  therein,  has  been 
held  to  pass  such  a  prima  facie  title  as  to  enable  the 
holder  thereof  to  maintain  a  suit  thereon  as  the  "real 
party  in  interest";^  but  this  construction  of  the  pro- 
cedural codes  is  thought  to  be  open  to  criticism  on  funda- 
mental grounds,^  especially  in  those  instances  in  which 
the  doctrine  is  carried  to  the  extent  of  preventing  the 
defendant  from  defending  on  the  ground  that  the  plain- 
tiff is  not  the  real  party  in  interest  and  shutting  out 
evidence  that  he  is  not  the  owner.^" 

V.  St.  Mary,  148  Ind.  Ill,  47  N.  E.  7  See  note  41    L.    R.  A.    (N.  S.) 

224;   Chapman  v.  McLawham,  150      641. 
N.  C.  166,  63  S.  E.  721.  s  See,  ante,  §  585. 

6  See,  ante,  §  603.  9  Id. 

10  See,  ante,  §  585,  footnote  7. 


825 


CHAPTER  IV. 

PABTIES  PLAINTIFF IN  ACTIONS  EX  DELICTO. 

§  613.  In  general. 

§  614.  Joinder  of  parties  plaintiff. 

§  615.  Injury  to  and  conversion  of  personal  property. 

§  616.  Injury  to  real  property — In  general. 

§  617.  As  to  possession  or  title  giving   right  of  action : 

Illustrations. 

§  618.  Action  by  tenant. 

§  619  Action  by  tenant  for  years  or  life-tenant. 

§  620.  Joinder  of  remainder-man  and  tenant. 

§  621.  Injuries  to  the  person. 

§  622.  Injuries  to  married  women — In  general. 

§  623.  Under  California  code. 

§  624. No  limitation  as  to  kinds  of  actions, 

§  625.  Injuries  to  minor  child  or  servant — Action  by  parent,  or 
master. 

^  626.  Action  by  minor  or  servant. 

§  627.  Real  and  mixed  actions — Ejectment. 

§  628.  Seduction :  Action  for — At  common  law. 

§  629.  Under  procedural  codes — In  general. 

§  630. By  parent,  guardian  or  master. 

§  631. By  unmarried  female. 

§  613.  Ix  GENERAL.  We  have  already  discussed  the 
characteristics  and  distinctions  of  actions  ex  contractu 
and  actions  ex  delicto/  and  it  remains  but  to  add  in  this 
place  that  actions  in  the  form  ex  delicto  are  for  injuries 
(1)  to  the  absolute  or  relative  rights  of  persons;  (2)  to 
personal  property;  and  (3)  to  real  property.  The  proper 
party  plaintiff  in  such  action  is  the  one  who  has  suffered 
the  injury,  he  being  the  real  party  in  interest.  This  was 
the  rule  at  common  law,  and  it  has  remained  substan- 
tially unchanged  by  the  procedural  codes.   The  principal 

1  See,  ante,  §§  4,  525. 

826 


ch.  IV.]         JOINDER  OF  PLAINTIFFS — ACTIONS  EX  DELICTO.  §  614 

changes  made  by  sucli  codes,  and  by  statute  in  other 
states,  in  respect  to  this  class  of  actions,  are  those  relating 
to  the  death  or  injury  to  the  person  of  adults  or  minors, 
caused  by  the  wrongful  act  or  neglect  of  another,-  and 
those  relating  to  seduction.^  The  procedural  codes  have 
also  made  several  imjDortant  changes  in  regard  to  parties 
plaintiff  in  this  class  of  actions  by  permitting  assign- 
ments of  certain  causes  of  actions  sounding  in  tort.  Many 
questions  have  arisen,  growing  out  of  the  nature  of  the 
injury  which  is  the  subject-matter  of  the  action,  and  of 
the  relations  held  (1)  to  the  property  affected,  or  (2)  by 
or  to  the  person  who  has  suffered,  and  the  decisions  of 
the  courts  thereon  modify,  to  some  extent,  the  application 
of  the  general  rule  as  to  parties  plaintiff  in  actions  sound- 
ing in  tort. 

<^  614.  Joinder  of  parties  plaintiff.  The  rules  as  to 
the  joinder  of  parties  plaintiff  in  actions  ex  contractu, 
which  have  already  been  discussed,^  also  apply  equally 
in  actions  sounding  in  tort,  the  old  equity  rule  which  per- 
mits all  persons  having  an  interest  in  the  subject  of  the 
action  and  the  relief  demanded  to  be  made  parties  plain- 
tiff, having  been  adopted  in  terms  in  the  procedural 
codes.-  On  such  joinder  judgment  may  be  given  in  favor 
of  any  one  or  more  of  the  plaintiffs  and  against  the 
others,^  the  same  as  in  actions  sounding  in  contract.  The 
limits  of  this  treatise  will  not  permit  a  discussion  in  detail 
of  all  the  instances  that  have  arisen  in  practice,  and  a 
citation  of  the  cases ;  but  an  effort  is  made  to  give  a  suffi- 
cient number  of  the  instances,  with  the  supporting  cases, 
to  show  the  general  applications  of  the  code  rules  as  to 
parties  plaintiff  in  actions  of  this  character. 

2  As  to  death  from  negligent  or  i  See,  ante,  §§  591-595. 

wrongful  act  of  another,  see,  ante,  2  Bliss  on  Code  Pleading,  §  24. 

§§  561,  562.  3  Id. 

a  See,  post,  §§  628-631. 

827 


§  615  code  pleading  and  practice.  [pt.  hi, 

§  615.  Injury  to  and  conversion  of  personal  prop- 
erty. In  the  case  of  a  wrongful  conversion  of  personal 
property,  an  action  for  the  recovery  of  the  possession 
thereof  must  be  brought  by  and  in  the  name  of  the  person 
who  is  entitled  to  the  immediate  possession  thereof,  either 
as  the  general  owner,^  or  as  having  a  special  property  or 
interest  therein  f  and  such  person  must  recover,  if  at  all, 
upon  the  streng-th  of  his  own  right  to  immediate  posses- 
sion, and  not  upon  the  weakness  of  the  defendant's  title.^ 
Thus  it  has  been  said  that  the  lessor  of  personal  prop- 
erty,— e.  g.,  sheep, — can  not  maintain  trespass  or  trover 
for  a  conversion  or  an  injury  done  to  the  property  by  a 
stranger  during  the  term  of  the  lease,  and  while  the 
lessee  has  the  actual  possession  of  the  property,  because 
such  owner-lessor  has  neither  the  possession  nor  the  right 
to  the  immediate  possession  ;^  although  it  has  been  held, 
on  the  other  hand,  that  the  owner  of  propertj^  which  has 
been  disposed  of  to  another  under  a  conditional  sale  may 

1  See  Green  v.  Burr,  131  Cal.  able  him  to  maintain  an  action 
236  63  Pac  360;  Humbert  v.  against  a  third  person  for  the  re- 
Mason,  46  Colo.  430,  104  Pac.  1037.      covery  of  the  possession  thereof 


Refusal     of    carrier    to     deliver 


Swenson  v.  Kleinschmidt,  10  Mont. 
473,  26  Pac.  198. 


goods  as  converslon.-0'Donnell  V.  purchaser  of  goods  left  in   pos- 

Canadian  Pac.  R.  Co.,  109  Me.  500,  ggggjon   of   seller,   subject  to   lien 

50   L.   R.  A.   (N.   S.)    1172,  84  Atl.  ^^^    unpaid    purchase-money,    can 

1002  and  note.  no^.  maintain  an  action  of  trover 

li  Glass    V.    Basin    &    Bay    State  against    one    who    wrongfully    re- 

Min.  Co.,  31  Mont.  21,  77  Pac.  302;  moved  them.— Lord  v.  Price,  L.  R. 

Frame   v.   Oregon   Liquor   Co.,   48  9  ex.  54. 

Ore.  272,  85  Pac.  1009,  86  Pac.  791;  gee  Kerr's  Benjamin  on   Sales, 

Pacific  Live   Stock  Co.  v.   Isaacs,  yol.  2,  984  (*670). 

52  Ore.  54,  96  Pac.  460;   Standard  3  Van  Zandt  v.  Schuyler,  2  Kan. 

Furniture   Co.   v.  Van  Alstine,   31  App.  118,  43  Pac.  295. 

Wash.   499,   72  Pac.  119;    Herman  4  Triscony  v.  Orr,   49   Cal.   612; 

v.  Northern  Pac.  R.  Co.,  43  Wash.  Cardinell  v.  Bennett,  52  Cal.  476; 

624,  86  Pac.  1068.  Yukon    River    Steamboat    Co.    v. 

Authority  to  sell  personal  prop-  Gratto,  136  Cal.  538,  542,  69  Pac. 

erty  and  collect  the  proceed&,  does  252;     Clarkson     v.     Stevens,     106 

not  invest  a  person  with   such  a  U.  S.  505,  27  L.  Ed.  139,  1  Sup.  Ct. 

special  interest  therein  as  will  en-  Rep.  200. 

828 


ell.  IV.]       INJURY,  ETC.,  TO  PERSONAL  PROPERTY.  §  G15 

maintain  an  action  of  claim  and  delivery  after  such  sale 
has  been  rescinded,  because  such  owner  never  parted  with 
the  title  or  the  right  of  possession,  and  had  a  right  to  the 
immediate  possession  of  the  property.^ 

In  the  case  of  an  injury  to  personal  property,  an  action 
may  be  maintained  against  the  wrongdoer  either  (1)  by 
the  general  owner  thereof,  whether  he  is  entitled  to  the 
immediate  possession  or  not,  and  if  he  is  not  entitled  to 
the  immediate  possession, — e.  g.,  where  the  property  is 
in  the  hands  of  a  bailee  or  lessee, — he  may  recover  to  the 
extent  of  the  injury  to  his  revisionary  interest;'  (2)  by 
the  person  having  the  possessory  title,  and  his  recovery 
for  his  special  injury  will  not  bar  or  otherwise  affect  the 
right  of  action  by  the  general  owner  ;^  and  (3)  by  the 
party  in  possession,  who  is  answerable  to  the  general 
owner,  who  may  sue  for  the  full  value  of  the  property 
injured,  but  if  he  recover  the  full  value,  the  o^\^ler  can  not 
maintain  an  action  for  the  injury,  and  vice  versa. ^ 

Two  or  more  joint  owners  of  the  property  which  is  the 
subject-matter  of  the  action,  all  must  be  joined  as  plain- 

sRodgers  v.  Bachman,  109  Cal.  Hall    v.    Robinson,    2    N.    Y.    293; 

552,  42  Pac.  448;  Kellogg  v.  Burr,  Wheeler  v.  Lawson,  103  N.  Y.  40, 

126  Cal.  38,  41,  58  Pac.  306;  Hark-  8  N.  E.   360;    Van  Hassel  v.  Bor- 

ness  V.  Russell,  118  U.  S.  663,  30  den,  1  Plilt.    (N.  Y.)   128;    Cass  v. 

L.  Ed.  285,  7  Sup.  Ct.  Rep.  51.  New  York  &  N.  H.  R.  Co.,  1  E.  D. 

6  Letting  horse  on  Sunday  for  Smith  (N.  Y.)  522;  McGinn  v. 
pleasure  drive,  in  violation  of  stat-  Worden,  3  E.  D.  Smith  (N.  Y.) 
ute,  does  not  preclude  recovery  for  355;  Harrison  v.  Marshall,  4  E.  D. 
injuries  from  over  driving. — Hin-  Smi^h  (N.  Y.)  271;  Paddon  v.  Will- 
kle  V.  Pruitt,  151  Ky.  34,  L.  R.  A.  ian>,  24  N.  Y.  Super.  Ct.  Rep.  (1 
1915F,  644,  151  S.  W.  43.  Rob.)   340,  2  Abb.  Pr.   (N.  S.)   88; 

As  to   liability  for  damages  for  Kemp    v.    Seely,    47    Wis.    687,    3 

conversion  of  or  injury  to  property  N.  W.  830. 

leased    or    hired    in    violation    of  8  1  Chitty  on  Pleading  (16th  Am. 

Sunday    law,    see    note    L.    R.    A.  ed.),  p.  62;   Winkfield,  The,  L.  R. 

1915F,  644.  (1902),  p.  42;  3  Brit.  Rul.  Cas.  368. 

7  1  Chitty  on  Pleading  (16th  Am.  As  to  right  of  bailee  to  recover 
ed.),  p.  61.  See  Wiggins  v.  Mc-  for  conversion  of  or  injury  to  prop- 
Donald,  18  Cal.  126;  I.aing  v.  Nel-  erty,  see  note  3  Brit.  Rul.  Cas.  388. 
son.  41  Minn.  521,  43  N.  W.  476:  o  Adams  v.  Childers,  10  Mo.  778. 

829 


§616  CODE   PLEADING   AND    PRACTICE,  [Pt.  HI, 

tiffs. ^<>  And  while  it  is  true  in  actions  sounding  in  tort 
as  well  as  in  actions  sounding  in  contract^ ^  that  the  action 
must  be  commenced  and  prosecuted  in  the  name  of  the 
real  party  in  interest/-  yet  it  has  been  said  that  where 
the  injury  complained  of  consisted  in  the  destruction  of 
the  property  by  fire,  and  the  loss  was  only  partially 
covered  by  the  insurance,  the  owner  may  join  the  insur- 
ance company  in  an  action  against  the  party  wrongfully 
causing  the  injury  and  loss.^^ 

§  616.  Injury  to  real,  property — In  general.  Where 
the  wrong  complained  of  is  a  trespass  upon  real  property, 
which  primarily  is  an  injury  to  the  possession,  if  the 
action  be  maintained  for  the  direct  wrong,  the  present 
injury  to  the  possession,  the  action  may  be  brought  and 
prosecuted  by  the  person  in  possession,^  unless  he  hold 
for  another  as  servant  or  agent,  in  which  case  the  action 
must  be  brought  and  prosecuted  by  the  principal  or 
owner.-   Where  the  person  in  possession  is  a  tenant,  or 

10  See,  ante,  §598;  Dubois  v.  such  an  action;  the  fact  that  it  is 
Glaub,  52  Pa.  St.  238;  De  Wolf  v.  adverse  to  the  defendant  is  suf- 
Harris,  4  Mas.  515,  Fed.  Cas.  No.  ficient. — Beaufort  Land  &  Invest- 
4221.  ment   Co.    v.    New   River   Lumber 

See,  ante,  §  598.  Co.,  86  S.  C.  358,  30  L.  R.  A.  (N.  S.) 

11  See,  ante,  §§  583,  587.  243,  68  S.  E.  637. 

12  Wiggins  V.  McDonald,  18  Cal.  As  to  character  of  title  or  pos- 
126.  session    of    plaintiff   necessary    to 

13  Lake  Erie  &  W.  R.  Co.  v.  sustain  action  for  trespass,  see 
Hobbs,   40   Ind.   App.   511,   517,    81  note  30  L.  R.  A.  (N.  S.)  243. 

N.  E.  90,  92.  As  to  action  by  tenant,  see,  post, 

1  Boss  V.  W^est,  110  Ga.   698,  36  §  618. 

S.  E.  244;   Hall  v.  Deaton,  24  Ky.  As  to  action  by  life  tenant,  see. 

L.  Rep.  314,  68  S.  W.  672;   Crate  post,  §  619. 

V.  Strong,  24  Ky.  L.  Rep.  710,  69  2  1  Chitty's  Pleading  (16th  Am. 

S.  W.  957;    Davenport  v.  Newton,  ed.),  p.  62;    Maddox  v.  State,  122 

71  Vt.  11,  42  Atl.  Rep.  1087;  Clay  Ala.   110,  26   So.  305:    Coppage  v. 

V.  St.  Albans,  City  of,  43  W.  Va.  Griffith,    19    Ky.    L.    Rep.    459,    40 

539,  64  Am.  St.  Rep.  883,  27  S.  E.  S.  W.  908;  Casey  v.  Mason,  8  Okla. 

368^  665,  59  Pac.  252. 

See,  also,  post,  §  617.  Owner  not  in  present  possession, 

Character  of  title  of  tenant  can  and  never  having  been  in  posses- 

not  be  determined  by  the  court  in  sion,  may  maintain  action  when.— 

830 


ch.  IV.] 


INJURY  TO  REAL  PROPERTY. 


§616 


the  holder  of  a  particular  estate,  and  the  injury  com- 
plained of  is  of  a  permanent  character,  and  such  as  to 
affect  the  inheritance,  or  the  estate  of  the  immediate 
revisioner  or  remainder-man,  the  action  may  be  brought 
and  prosecuted  by  the  owner  of  such  next  estate  or  in- 
heritance,^ either  (1)  for  damages  for  the  trespass,  or 
(2)  to  enjoin  the  continuance  of  the  wrongful  act,*  not- 
withstanding the  possession  of  the  tenant;^  but  the 
remainder-man  recovers  for  his  own  damage  only.^  Thus 
the  equitable  owner,  in  possession,  may  maintain  an 
action  for  damage  to  the  freehold;'^  or  he  may  sue  for 


Percival  v.  Chase,  182  Mass.  371, 
65  N.  E.  800. 

Owner  of  unoccupied  lands  may 
sua  for  trespass.  —  Russell  v. 
Meyer,  7  N,  D.  335,  47  L.  R.  A.  637, 
75  N.  W.  262. 

State  seeking  to  recover  for  tres- 
pass upon  lands  previously  grant- 
ed, must  show  that  it  has  recov- 
ered possession  in  some  regular 
manner. — State  v.  Evans,  33  S.  C. 
184,  11  S.  E.  679. 

3  1  Chitty's  Pleading  (16th  Am. 
ed.),  p.  63. 

4  Van  Deusen  v.  Young,  29  Barb. 
(N.  Y.)  9  (modified  as  to  method 
of  estimating  damage  in  29  N.  Y. 
9);  Ulrich  v.  McCabe,  1  Hilt. 
(N.  Y.)  251;  Lamport  v.  Abbott.  12 
How.  Pr.  (N.  Y.)  340;  Cowland  v. 
Meyers,  99  N.  C.  198,  6  S.  E.  82; 
Dorsey  v.  Moore,  100  N.  C.  41,  6 
S.  E.  270;  Bailey  v.  Chicago,  M.  & 
St.  P.  R.  Co.,  3  S.  D.  531,  19  L.  R.  A. 
653,  54  N.  W.  596;  University  v. 
Tucker,  31  W.  Va.  621,  8  S.  E.  410. 

Damage  to  easement  of  abutting 
owners  to  be  caused  by  future  run- 
ning of  trains  to  be  included  in  al- 
ternative damages  in  lieu  of  in- 
junction.— Sperb  V.  Metropolitan 
Elev.    R.    Co.,    137   N.    Y.    155,    20 


L.  R.  A.  752,  32  N.  E.  1050.  See 
Herman  v.  Manhattan  R.  Co.,  58 
App.  Div.  (N.  Y.)  369,  373,  68  N.  Y. 
Supp.  1020;  Purdy  v.  Manhattan  P.. 
Co.,  3  Misc.  (N.  Y.)  50,  51,  22  N.  Y. 
Supp.  943  (injury  to  easement  of 
light  and  air  to  be  considered  in 
fixing  damages). 

Easement,  aside  from  damage  to 
land,  has  only  nominal  value,  and 
consequential  damages  may  be  oft- 
set  by  advantages. — Livingston  v. 
Metropolitan  Elev.  R.  Co.,  138  N.Y. 
76,  78,  33  N.  E.  732. 

5  Crowder  v.  Fordyce  Lumber 
Co.,   93   Ark.    394,    125    S.   W.   417. 

See  authorities  fully  collected  in 
note  L.  R.  A.  1916A,  793-799. 

6  Nashville,  C.  &  St.  L.  R.  Co.  v. 
Heikens,  112  Tenn.  378,  65  L.  R.  A. 
298,  79  S.  W.  1038  (value  of  lease- 
hold to  be  deducted) ;  Jordan  v. 
Benwood,  42  W.  Va.  312,  57  Am. 
St.  Rep.  859,  36  L,  R,  A.  519,  26 
S.  E.  266. 

7  Rood  V.  New  York  &  E.  R.  Co.. 
18  Barb.  (N.  Y.)  80;  Foster  Lum- 
ber Co.  V.  Arkansas  Valley  &  W. 
R.  Co.,  20  Okla.  583,  588,  30  L.  R.  A. 
(N.  S.)  235,  95  Pac.  224;  Russell  v. 
Meyer,  7  N.  D.  335,  47  L.  R.  A.  637. 
75  N.  W.  262. 

As    to    sufficiency    of    equitable 


831 


§  617  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

trespass.^  On  the  same  principle,  the  owner,  redeeming 
from  a  sale  under  execution,  may  sue  for  waste  inter- 
mediate between  the  sale  and  his  redemption.^  So  also 
an  action  can  be  maintained  by  the  mortgagee  of  real 
estate  to  recover  damages  for  wrongful  and  fraudulent 
injuries  done  to  the  mortgaged  property,  by  which  the 
security  of  the  mortgage  has  been  impaired.^" 

§  617. As   TO    POSSESSION    OR   TITLE   GIVING   RIGHT    OF 

ACTION :  Illustration.  A  person  suing  for  damages  for 
the  wrongful  injury  to  or  trespass  upon  real  property 
must  show  some  title,  or  some  interest  in  the  property,  at 
the  time  of  the  wrongful  act  complained  of,  before  he  is 
entitled  to  maintain  the  suit  or  to  recover  for  the  alleged 
wrongful  act.^  Thus,  a  landlord  out  of  possession  can  not 
maintain  an  action  for  trespass  quare  clausum  for  any 
mere  injury  to  the  possession,  and  not  affecting  the  in- 
heritance or  reversion ;  because  such  an  action,  being  for 
injury  to  the  possession,  must  be  brought  and  maintained 
by  the  person  who  was  entitled  to  the  possession  at  the 
time  of  the  wrongful  act,  and  whose  possession  has  been 
injured.-  The  bare  possession  of  real  property  gives  the 
right  of  action  against  any  one  who  wrongfully  interferes 
with  that  possession.^   Thus  the  actual  occupant  of  lands 

title  to  sustain  action  for  trespass,  to  the  possession;  the  action  must 

see  note  47  L.  R.  A.  637.  be  brought  and  prosecuted  by  the 

s  Hansee  v.  Hammond,  39  Barb.  P^^^o"  ^^^^e   possession  was   in- 

(N.  Y.)    89;    Safford  v.  Hynds,  39  Jured.-Look  v.  Norton,  94  Me.  547, 

Barb.  (N.  Y.)  625;  Pierce  v.  Hall,  ^^  ^^^-  ^^'^• 

41   Barb.    (N.  Y.)    142;    Sparks   v.  '^^^^'   City   of,  v.   Shropshire, 

Leavy,  24  N.  Y.  Super.  Ct.  Rep.  (1  ^^  Ga.  93,  37  S.  E.  168 

Rob.)  530,  19  Abb.  Pr.  364;  Russell  '  ^^^^^  ^-  bailey,  94  Me.  50    46 

V.  Meyer,  7  N.  D.  335,  47  L.  R.  A.  ^tl.  789;   Look  v.  Norton.  94  Me. 

K07     7^  M    W    9R9  547,    48    Atl.    117. 

637,  70  N.  W.  262.  ^  ^^^^  ^    ^^^^^   ^^^  ^^    ^^^^  3^ 

9  Thomas  v.  Crofut,  14  N.  Y.  474.      g  ^  244;  Davenport  v.  Newton,  71 

10  Robinson   v.  Russell,    24   Cal.      vt.  11,  42  Atl.  1087. 

472.  Mere     possession     suflRcient    as 

Mortgagee  out  of  possession  can  against  a  stranger  entering  with- 
not  maintain  an  action  of  trespass  out  right.— Davenport  v.  Newton, 
quare  clausum  for  any  mere  injury      71  Vt.  11,  42  Atl.  1087. 

832 


ch.  IV.]  POSSESSION  ESSENTIAL  TO  ACTION.  §  617 

may  maintain  an  action  for  a  trespass  interfering  with 
the  possession,^  even  though  such  occupancy  be  without 
tith'  or  right,  where  it  is  adverse.^  While  an  actual  or 
constructive  possession  is  necessary  to  confer  the  right 
of  action,*'  a  mere  constructive  possession  emanating  from 
a  legal  title  is  sufficient/  An  executor  or  administrator 
could  not  maintain  the  action  under  the  common  law,  but 
many  of  the  procedural  codes  and  statutes  have  con- 
ferred upon  such  persons  a  right  to  maintain  the  suit  in 
their  representative  capacity;'^  and  an  executor  empow- 
ered and  directed  by  will  to  sell  and  convey  specified  real 
estate,  and  to  distribute  the  proceeds,  may  maintain  an 
action  for  trespass  upon  or  injury  to  such  real  estate.^ 
A  homestead  entryman  has  such  possession  and  title  as 
confers  upon  him  the  right  to  maintain  an  action  for  a 
trespass  interfering  with  his  right  of  possession  or  inter- 
est in  the  land,^°  and  particularly  is  this  so  where  he 
made  his  entry  under  the  United  States  homestead  laws 
and  has  received  a  receipt  of  his  entry  from  the  receiver 
of  the  land  office. ^^  A  husband  and  wife  occupying  the 
premises,  he,  as  the  head  of  the  family,  may  maintain  an 
action  for  a  trespass.^-  A  licensee  may  maintain  an  action 
foi-  trespass,  although  his  license  is  by  parol. ^^  A  married 
woman  in  possession  of  her  separate  property,  although 
the  legal  title  is  vested  in  a  trustee  for  her  benefit,  may 
maintain  an  action  for  trespass  upon  or  injury  to  the 

4  Stahl  V.  Grover,  80  Wis.   650,  lo  Gulf.    C.    &    S.    F.    R.    Co.    v. 
50  N.  W.  589.  Clark,  2  Ind.  Tr.  319,  51  S.  W.  962; 

5  Farmer  v.  Lyons,  87  Ky.  422,  9  Matthews  v.  O'Brien,  84  Minn.  505, 
S.  W.  248.  gg    N    W.    12;    Culbertson    Irr.    & 

cNewcomb   v.    Love,    112   Mich.      water-Power    Co.    v.    Olander,    51 
115,  70  N.  W.  443.  ^^^_  539^  ^^  j^_  ^y   298. 

7  Coppage  V.  Griffith,  19  Ky.  L. 
Rep.  459,  40  S.  W.  908;  High's 
Heirs  v.  Pancake,  42  W.  Va.  602, 
26  S.  E.  536. 

s  Conklin   V.   Alabama   &   V.   R.  ^-  ^^^^  ^-  Hicks,  129  Mo.  99,  31 

Co.,  81  Miss.  152,  32  So.  920.  S.  W.  35. 

'J  Duff's  Exr.  V.  Duff,  21  Ky.  L.  13  Miller    v.    Greenwich    Town- 

Rep.  1211,  54  S.  W.  711.  ship,  62  N.  J.  L.  771,  42  Atl.  735. 

I  Code  PI.  and  Pr.— 53  §33 


11  Gulf,  C.  &  S.  F.  R.  Co.  V. 
Clark,  2  Ind.  Ter.  319,  51  S.  W. 
962. 


§  617  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

property.^*  Possession  without  title  confers  the  right  to 
maintain  an  action  against  a  mere  naked  trespasser,^^ 
where  the  possession  is  adverse  and  exchisive  to  a  well- 
defined  boundaiy.^^  The  possession  of  real  estate  for 
fifteen  years  gives  a  prima  facie  title  thereto  sufficient 
to  authorize  the  possessor  to  maintain  an  action  for  in- 
jury to  the  possession  by  an  adverse  claimant.^^  A  right 
to  possession  entitles  a  party  to  maintain  the  action.^ "^ 
A  widow,  before  the  assignment  of  a  dower,  can  not 
maintain  an  action  for  trespass,  because  her  inchoate 
right  to  dower  is  a  mere  chose  in  action.^''  A  wife,  where 
the  land  is  held  by  entireties  by  herself  and  husband, 
may  maintain  an  action  of  trespass.-*^ 

Right  of  action  assignable,  for  a  trespass  or  other 
wrongful  injury  to  real  property  or  to  the  possession 
thereof,  according  to  some  of  the  cases, -^  but  according 
to  other  cases  the  right  to  maintain  the  action  does  not 
run  with  the  land,  and  is  not  assignable  by  the  owner,^- 
and  that,  for  this  reason,  the  grantee  of  an  owner  who 
has  a  right  of  action  for  damages  for  a  trespass,  can  not 
maintain  such  action.-^  The  vendee  of  land  can  not  main- 
tain trespass  to  recover  for  the  conversion  of  the  rent  of 
the  land,  against  a  tenant  of  the  vendor  who  remained  in 
possession  of  the  property  after  the  sale  with  his  knowl- 
edge, where  he  has  made  no  demand  upon  him  for  the 
possession  or  for  the  rent.^* 

14  Clay  V.  Albons,  City  of,  43  W.  lo  Munsey  v.  Hanley,  102  Mich. 
Va.   539,   64   Am.   St.    Rep.   883,   27       423,  67  Atl.  217. 

S-  E.  368.  20  Fowlers  v.  Hayden,  130  Mich. 

15  Sell  V.  Graves,  16  Mont.  342,      47   37  jsj  -^  ^'ji 


21  Chouteau    v.     Boughton,     100 
Me.  406,  13  S.  W.  877. 


40  Pac.  788. 

iG  Shields   v.   Heard,   21   Ky.   L. 
Rep.  902,  53  S.  W.  820. 

17  Hart  V.  Doyle,  128  Mich.  257.  "  ^"^°   ^-    M^^°°-   ^-   ^   ^-   ^■ 

87    N.    W.    219.      See    Shields    v.  ^°'  1^7  Ga.  838,  33  S.  E.  696. 

Heard,    21    Ky.    L.    Rep.    992,    53  23  Burkhalter  v.    Oliver,   88   Ga. 

S.  W.  820.  473,  14  S.  E.  704. 

isOleson  v.  Seattle.  City  of,  30  24  Ingram    v.    Thomas,    24    Ind. 

Wash.  687,  71  Pac.  201.  App.  570,  57  N.  E.  263. 

834 


Ch.  IV.]  ACTION  BY  TENANT,  ETC.  §§  618,  G19 

§618.    Action  by  tenant.    It  would  seem  tliat  a 

tenant,  in  an  action  to  recover  for  his  damages,  has  a 
right  to  show  that  his  landlord  had  only  a  limited  estate 
in  the  premises,  which  had  terminated.^  In  those  cases 
in  which  the  injury  complained  of  is  to  a  building  erected 
on  the  leased  premises  by  the  tenant,  reverting  at  end  of 
term,  in  case  of  a  total  destruction,  the  measure  of  dam- 
ages of  the  tenant  will  be  the  actual  value  of  the  re- 
mainder of  the  term,  less  the  rent  reserved ;-'  because  the 
title  to  the  building  vested  at  once  in  the  lessor,  subject 
to  the  lessee's  rights  under  the  provisions  of  the  lease.^* 
The  above  is  in  analogy  to  the  rules  applicable  in  con- 
demnation under  the  power  of  eminent  domain. 

§  619.  Action  by  tenant  for  years  or  life- 
tenant.  In  an  action  by  a  life-tenant  or  a  tenant  for 
years  to  recover  damages  against  a  wrongdoer  to  his 
estate  in  real  property,  his  powers  and  rights  are  at 
least  as  large  as  those  of  a  tenant  for  a  lesser  period  ;^ 
and  in  addition  thereto  it  has  been  held  by  one  line  of 
cases  that  a  tenant  for  years  or  a  tenant  for  life,  in  addi- 
tion to  recovering  for  the  damages  to  his  estate,  he  may 
also  recover  the  damages  to  the  reversion  from  the 
wrongdoer ;2  but  there  is  another  line  of  strong  cases 

iSee    Spafford    v.    Hedges,    231  46  N.  H.  230;    Cook  v.  Champlain 

111.  140,  145,  83  N.  E.  129.  Transp.    Co.,    1    Den.    (N.    Y.)    91; 

2  See  Metropolitan  Bldg.  Co.  v.  Austin  v.  Hudson  River  R.  Co.,  25 
King  County,  62  Wash.  409,  411,  N-  ^-  ^^^^  Baker  v.  Hart,  123  N.  Y. 
113  Pac    1114  473,  12  L.  R.  A.  60,  25  N.  E.  948; 

3  Corcoran  v.  Chicago,  City  of,  l^^'  ^  ^ITf'  "".^  ''■  ''°-' 
144  111.  537,  21  L.  R.  A.  212,  33  ^  ^  J" /'''.«:":.?"•  ''''''• 
N.  E.  746.  See  Bass  v.  Metropoli-  ^  '  ^;,.^-  ^-  ''''^'  ^f  ^'  '''  ^^  ^^ 
tan  West  Side  Elev.  R.  Co.,  27  T^'' J^'V/,  ^''TV  o^^"  ''''• 
C.  C.  A.  147,  151,  53  U.  S.  ipp.  ^7:^''''  .''  ''•  ^^  ^"P'^"  '''' 
542.  82  Fed.  857,  39  L.  R.  A.  711,  !J"'^^^  ^'■^'''°"  ^^-  ^-  ^^rguson 
yj^  Contracting    Co.,     117    App.     Div. 

(N.  Y.)   305,  102  N.  Y.  Supp.   190; 

1  See,  ante,  §  618.  XJlrich  v.  McCabe,  1  Hilt.   (N.  Y.) 

2  See  Cargill  v.  Sewal,  19  Me.  251;  Willey  v.  Laraway,  64  Vt.  559, 
288;  Coale  v.  Hannibal  &  St.  .1.  R.  25  Atl.  436;  Attersoll  v.  Stevens,  1 
Co.,  60  Mo.  227;   Wood  v.  Griffin,      Taunt.   183,   9    Rev.    Rep.   731,   127 

835 


§  620  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

which  holds  that  a  tenant  for  years  or  a  life-tenant  can 
not  recover  for  the  damages  to  the  reversion.^  Where  a 
tenant  for  years  or  a  life-tenant  is  permitted  to  recover 
for  the  damages  to  the  reversion  the  right  is  not  based 
upon  the  theory  that  such  tenant  is  liable  over  to  the 
remainder-man  for  waste,  but  is  based  upon  the  ground 
that  such  tenant  is  a  trustee  in  possession*  for  the 
remainder-man.^ 

A  tenant  at  ivill  can  not  recover  for  damages  to  the 
reversion,  because  he  is  not  liable  for  permissive  waste 
and  is  not  a  trustee  in  possession  for  his  landlord,  the 
remainder-man.^ 

<§  620.    Joinder  of  remainder-man  and  tenant.  In 

the  case  of  a  trespass  upon  or  other  injury  to  real  estate 
the  remainder-man  and  the  tenant,  or  the  owner  of  an 
intervening  estate,  it  has  been  said,  may  not  be  joined 
in  an  action  to  recover  for  the  injury  to  the  inheritance, 
their  injuries  being  different  and  their  actions  several  ;^ 
but  the  general  rule  is  that  they  may  be  joined  in  such 
an  action.-   Some  of  the  cases  hold  that  their  joinder  is 

Eng.  Repr.  802,  10  Mor.  Min.  Rep.  213  N.  Y.  246,  Ann.  Gas.  1916C,  877, 

67.  L.  R.  A,  1916A,  787,  107  N.  E.  661. 

See,  also,  notes  Ann.  Gas.  1916C,  6  See  Davis  v.  Smith,  15  Mo.  468; 

881;  L.  R.  A.  1916A,  805.  Mason  v.  Stiles,  21  Mo.  374,  64  Am. 

3  See  Baffin  v.  Zimmerman  Mfg.  Dec.  242 ;  Coale  v.  Hannibal  &  St. 
Co.,  C.  W.,  158  Ala.  637,  48  So.  109;  J.  R.  Co.,  60  Mo.  277;  Cook  v. 
Brown  v.  Woodliff,  89  Ga.  413,  15  Champlain  Transp.  Co.,  1  Den. 
S.  E.  491;  Sagar  v.  Eckert,  3  111.  (N.  Y.)  91;  Austin  v.  Hudson 
App.  412;  Polk  v.  Hawarth,  48  Ind.  River  R.  Co.,  25  N.  Y.  334. 

App.  32,  95  N.  E.  332;  Zimmerman  i  Yeager  v.  Fairmont,  43  W.  Va. 

V.  Shreeve,  59  Md.  357;   Jordan  v.  259,   264,    27   S.    E.    234.     But  see 

Benwood,  42  W.  Va.   312,  57  Am.  Shinn  v.  O'Gara  Coal  Min.  Co.,  72 

St.   Rep.   859,   36   L.   R.   A.   519,   26  W.  Va.  326,  78  S.  E.  104. 

S.    E.    266;    Yeager    v.    Fairmont,  2  Williams  v.  Lanier,  44  N.  C.  (1 

Town  of,  43  W.  Va.  259,  27  S.  E.  Busbee  L.)   30;   Mclntire  v.  West- 

234.  moreland  Coal  Co.,  118  Pa.  St.  108, 

4  As  to  right  of  trustee  of  an  11  Atl.  808;  Gulf,  C.  &  S.  F.  R.  Co. 
express  trust  in  land  to  sue  in  his  v.  Jagoe  (Tex.  Civ.  App.),  32  S.  W. 
own  name,  see,  ante,  §611.  1061;    Shinn  v.   O'Gara  Coal   Min. 

5  Rogers  V.  Atlantic,  G.  &  P.  Co.,  Co.,  72  W.  Va.  326,  78  S.  E.  104; 

836 


ell.  IV.] 


INJURIES  TO  THE  PERSON. 


§621 


necessary.^  But  several  parties  can  not,  in  a  joint  action, 
recover  for  damages  to,  or  for  the  use  and  occupation  of, 
two  or  more  distinct  tracts  of  land  which  they  own  in 
severalty.* 

§  621.  Injuries  to  the  persox.  In  the  case  of  injuries 
to  the  person,— e.  g.,  assault,  assault  and  battery,  false 
imprisonment,  libel  and  slander,^ malicious  prosecution, — 
and  of  personal  injuries  through  negligence  or  wrongful 
act,  even  where  there  are  several  persons  injured  at  tlie 
same  time,  by  the  same  act,  and  by  the  same  defendants, 
the  action  is  usually  several,  and  each  person  who  was 
thus  injured  must  bring  his  separate  action.-  But  this 
rule  is  not  of  universal  application,  as  the  wrongful  act 
may  injure  tw^o  or  more  persons  in  their  joint  relation, — 
e.  g.,  a  slander  or  a  libel  against  a  partnership,  which 
injures  the  partnership  business,^ — or  where  the  parties 
have  incurred  a  joint  liability  by  reason  of  the  wrong, — 


Schiffer  v.  Eu  Claire,  City  of,  51 
Wis.  385,  8  N.  W.  235. 

3  Ingraham  v.  Bunnell,  46  Mass. 
(5  Mete.)  125;  Bach  v.  New  York 
Elev.  R.  Co.,  60  Hun  (N.  Y.)  128, 
14  N.  Y.  Supp.  620.  See  Kehr  v. 
Floyd,  132  Ga.  626,  64  S.  E.  673. 

4  Tennant  v.  Pfister,  51  Cal.  511. 
See  Miller  v.  Highland  Ditch  Co., 
87  Cal.  430,  22  Am.  St.  Rep.  254,  25 
Pac.  550;  Foreman  v.  Boyle,  88 
Cal.  290,  293,  26  Pac.  94;  Senior  v. 
Andrews,  138  Cal.  716,  723,  72  Pac. 
349:  Blaisdell  v.  Stephens,  14  Nev. 
17,  33  Am.  Rep.  523. 

1  Smith  V.  Croker,  Cro.  Car.  512, 
79  Eng.  Repr.  1042. 

2  1  Chitty's  Pleading  (16th  Am. 
ed.),  p.  64. 

Husband  and  wife  maliciously 
arrested  upon  a  warrant  charging 
a  crime  without  a  probable  cause 
of  action,  each  has  a  separate  right 


of  action  for  the  malicious  prose- 
cution, and  they  can  not  unite 
their  separate  cause  of  action  in 
one  complaint,  but  each  must  bring 
and  maintain  a  separate  suit  for 
damages.  —  Williams  v.  Casebeer, 
126  Cal.  77,  58  Pac.  380. 

— The  wife,  however,  can  not 
sue  without  making  her  husband  a 
party  plaintiff.— Id.;  McFadden  v. 
Santa  Ana,  O.  &  T.  Street  R.  Co., 
87  Cal.  464,  25  Pac.  681. 

See,  also,  cases  cited,  post,  §  623, 
footnote  7. 

The  rule  is  thought  to  be  differ- 
ent since  the  amendment  of  1913 
to  §  370.    See,  post,  §  623. 

3  Cook  V.  Bachelor,  3  Bos.  &  P. 
150,  127  Eng.  Repr.  83;  Maitland 
V.  Goldney,  2  East  426,  6  Rev.  Rep. 
466,  102  Eng.  Repr.  431;  Foster  v. 
Lawson,  11  Moo.  360;  Coryton  v. 
Lithbye,  2  Wm.  Saund.  116  note, 
85  Eng.  Repr.  823. 


837 


§§  622,  623  CODE  pleading  and  practice.  [Pt.  Ill, 

e.  g.,  jointly  incurred  expense  in  securing  their  release 
in  a  case  of  malicious  arrest;^  in  either  of  which  cases  a 
joint  action  may  be  maintained.^ 

^  622.  Injuries  to  married  woman — In  general.  At 
the  common  law,  for  injuries  to  a  married  woman,  the 
right  of  action  was  in  the  husband,  although  in  certain 
cases  the  wife  must  join.  The  rule  was  substantially  this  : 
If  the  cause  of  action  survive  to  the  wife,  she  must  be 
joined  as  plaintiff;  as  where  the  injury  was  before  mar- 
riage; or,  if  it  was  inflicted  after  marriage,  it  be  of  such 
a  nature  as  to  bring  personal  suffering  to  the  wife,  or  if 
it  injures  her  personally;  as  a  battery,  false  imprison- 
ment, or  slander  by  words  actionable  per  se.^  And  the 
same  rule  prevailed  in  regard  to  injuries  to  the  wife's 
property.  If  the  cause  of  action  survived  to  her,  she 
should  join,  otherwise  not.^  The  procedural  codes  made 
sweeping  changes  in  regard  to  the  common-law  rules  con- 
cerning the  joinder  of  husband  and  wife. 

<^  623.    Under   California  code.     The   California 

Code  of  Civil  Procedure  has  swept  away  almost  ever\' 
vestige  of  the  old  common-law  restrictions  relating  to 
actions  by  married  women ;  and  married  women,  in  Cali- 
fornia, may  bring  and  maintain  actions  in  their  own 
names  for  all  injuries  to  their  persons,  and  also  for  per- 
sonal injuries  through  negligent  and  wrongful  acts,  with- 
out joining  the  husband  in  the  action.  The  code  provision 
has  already  been  set  out  and  fully  analyzed^  and  does 
not  require  to  be  here  repeated.  The  present  section,  as 
amended  in  1913,-  is  more  liberal  in  its  provisions  than 

4  1  Chitty's  Pleading  (16th  Am.  ed.),  p.  73;  Bliss  on  Code  Plead- 
ed.), p.  64.  ing,  §27. 

5  1  Chittys  Pleading  (16th  Am.  "^  Chitty's  Pleading  (16th  Am. 
,  ,         „.                                                    ed.),  p.  75. 

^^■^'  P-  ^*-  1  See.  ante,  §  594. 

See,  also,  cases  cited  in  footnote  „  j^g,.j,.g    ^y^     ^^^     ^^^^    ^.j^ 

3,  this  section.  Proc,  2d  ed.,  §370;    Consolidated 

1  1  Chitty's  Pleading  (16th  Am.      Supp.  1906-1913,  p.  1408. 

838 


ell.  IV.]  INJURIES  TO  MARRIED  WOMEN,  §  623 

heretofore,  but  provisions  of  a  like  nature,  though  more 
restricted,  have  been  in  the  code  from  the  time  of  its 
adoption  in  1872.  In  construing  these  provisions  of  the 
code,  as  it  formerly  existed,  the  courts  held  that  in  actions 
for  injuries  to  the  wife's  person  or  character,  she  must 
join  with  her  husband;'^  v\'hile,  for  injuries  to  her  sep- 
arate estate,  whether  the  same  arise  from  deceit,  trespass, 
or  conversion,  she  may  sue  alone,  or  her  husband  may  be 
joined  with  her,  as  the  provision  authorizing  her  to  sue 
alone  has  generally  been  held  permissive,  except  in  those 
states  which  absolutely  require  the  action  to  be  prose- 
cuted by  the  wdfe  alone.*  So,  also,  if  the  cause  of  action 
arises  from  contract  the  w^ife  may  sue  alone  if  it  concerns 
her  separate  estate,  or  her  husband  may  join  "«dth  her  in 
such  action. 

Construction  since  amendment  of  1913  has  not  been 
such  as  to  throw  any  new  light  upon  the  section,  as  thus 
amended,  in  respect  to  the  particular  point  under  discus- 
sion; but  there  has  been  construction,  as  we  shall  see 
presently,  in  reference  to  suits  ex  delicto  against  the  wife, 
where  the  cause  of  action  arises  out  of  her  separate  prop- 
erty, the  holding  being  that  the  husband  must  be  joined 
in  such  actions.^  In  1915  it  was  held  that  an  action  for 
damages  for  personal  injuries  to  the  wife,  while  it  may 
be  maintained  by  wife  suing  alone,*'  the  money  recovered 
as  damages,  if  any,  being  community  property  over 
which  the  husband  has  control,  yet  an  action  to  recover 

3  See  Tell  v.  Gibson,  66  Cal.  247,  Cal.  308;    Kays  v.  Plielan,  19  Cal. 

5    Pac.    223;    McFadden   v.    Santa  128;   Calderwood  v.  Pyser,  31  Cal. 

Ana,  O.  &  T.  Street  R.  Co.,  87  Cal.  333;   Corcoran  v.  Doll,  32  Cal.  82, 

464,  11  L.  R.  A.  252,  25  Pac.  681;  90;  Sprague  v.  Heard,  90  Cal.  221. 

Neale  v.  Depot  R.  Co.,  94  Cal.  425,  27  Pac.  198;    Palmer  v.  Davis,  2S 

29   Pac.  954;    Lamb  v.   Harbaugh,  N.  Y.  242;   Ackerly  v.  Tarbox,  31 

105  Cal.  680,  39  Pac.  56;  Hawkins  N.  Y.   564;    Newberry  v.  Garland, 

V.   Front   St.   Cable   Co.,   3   Wash.  31  Barb.  (N.  Y.)  121. 

592,   28   Am.   St.   Rep.   72,   28   Pac.  5  See,  post,  §  678. 

1021.  6  See  Meier  v.  Wagner,  27  Cal. 

i  See  Van  Maren  v.  Johnson,  15  App.  579,  150  Pac.  797. 

839 


§  624  CODE  PLEADING  AND  PRACTICE,  [Pt.  Ill, 

for  such  injuries  can  not  be  maintained  by  tlie  busband 
alone/  this  being  the  only  exception  to  the  rule  that  the 
husband  may  sue  alone  in  actions  concerning  the  com- 
munity property,  and  in  this  action  the  husband  must 
join  his  wife  with  him  as  a  plaintiff.®  On  the  theory  that 
the  husband  is  a  necessary  party  plaintiff  in  an  action  by 
the  wife  to  recover  damages  for  an  injury  to  her  person, 
it  was  held  in  1916  that  the  wife's  sole  cause  of  action  for 
such  damages  did  not  begiii  to  run  until  she  was  deserted 
by  her  husband  f*^  but  this  is  thought  to  contravene  the 
express  provisions  of  paragraph  one  of  section  three 
hundred  and  seventy,  as  amended  in  1913.^" 

<§  624. No  LIMITATION  AS  TO  KINDS  OF  ACTIONS. 

It  is  to  be  noted  there  is  no  statutory  limitation  as  to  the 
kind  of  actions  that  may  be  maintained  by  the  wife  when 
they  concern  her  separate  property,  or  are  against  her 
husband.  Thus,  a  married  woman  may  sue  alone  on  a 
promissory  note  forming  a  part  of  her  separate  estate/ 
for  money  loaned,  or  breach  of  a  money  contract,  although 
such  note  was  given  to  her  by  her  husband  before  mar- 
riage, and  he  is  the  party  sought  to  be  held  liable  in  the 
action.^    Nor  is  it  necessary,  under  this  section,  for  the 

7  See  Sheldon  v.  Steamer  Uncle  Mill  &  Lumber  Co.,  110  Cal.  481, 
Sam,  18  Cal.  526,  79  Am.  Dec.  193;  42  Pac.  980,  followed  in  Moody  v. 
Matthew  v.  Canadian  Pac.  R.  Co.,  Southern  Pac.  Co.,  167  Cal.  786, 
63  Cal.  450;  Tell  v.  Gibson,  66  Cal.  141  Pac.  388;  Meier  v.  Wagner,  27 
247,  5  Pac.  223;  Baldwin  v.  Second  Cal.  App.  579,  150  Pac.  797. 
Street  Cable  R.  Co.,  77  Cal.  390,  19  9  Mortell  v.  Los  Angeles  College 
Pac.  644;  McFadden  v.  Santa  Ana,  of  Osteopathy,  30  CaL  App.  422, 
O.  &  T.  Street  R.  Co.,  87  Cal.  464,  158  Pac.  508. 

25  Pac.  681;  Neale  V.  Depot  R.  Co.,  lo  See,  ante,   §594,  item    (2)    in 

94  Cal.  245,  29  Pac.  954;   McKune  analysis  of  section. 

V.  Santa  Clara  Valley  Mill  &  Lum-  i  See,   ante,    §  594;    Corcoran   v. 

ber  Co.,  110  Cal.  480,  42  Pac.  980;  Doll,   32   Cal.   82;    Smart  v.    Com- 

Williams  v.  Casebeer,  126  Cal.  77,  stock,  24  Barb.  (N.  Y.)  411. 

S2,  58  Pac.  380;  Gomez  v.  Scanlan,  2  Wilson  v.  Wilson,  36  Cal.  447, 

155    Cal.    528,    530,    102    Pac.    12;  95   Am.    Dec.   194;    Mathewson   v. 

Meier  v.  Wagner,  27  Cal.  App.  579,  Mathewson,  79  Conn.  32,  5  L.  R.  A. 

150  Pac.  797.  (N.   S.)    611,   63  Atl.  289;    May  v. 

8  McKune  v.  Santa  Clara  Valley  May,  9  Neb.  23,  31  Am.  Dec.  40*^. 

840 


eh.  IV.] 


INJURIES  TO  MARRIED  WOMEN. 


§624 


wife  to  sue  by  prochein  ami.^  In  New  York  a  married 
woman,  it  seems,  can  not  sue  her  husband  for  assault  and 
battery;*  nor  for  libel  or  slander;-^  nor  in  ejectment.** 
But  she  may  sue  him  for  alimony,  without  bringing  an 
action  for  divorce.'^  In  California,  the  possession  of 
either  of  the  spouses  as  to  the  community  property  is  the 
possession  of  the  other,  and  neither  can  sue  the  other 
for  the  conversion  thereof.^  The  provision  of  the  section 
authorizing  the  wife  to  be  sued  alone  when  living  sep- 
arate and  apart  from  her  husband,  has  no  application  to 
a  mere  temporary  absence  of  the  wife  from  her  husband ; 
there  must  have  been  an  abandonment  on  the  part  of  the 
husband  or  wife,  or  a  separation  which  was  intended  to 
be  final. ^  In  some  jurisdictions  a  married  woman  can 
maintain  an  action  alone  for  an  injury  to  her  person,  and 
the  husband  is  not  a  necessary  party  to  such  action. ^*^ 


2  N.  W.  221;  Grubbe  v.  Grubbe, 
26  Ore.  363,  372,  38  Pac.  182;  Alex- 
ander V.  Alexander,  85  Va.  353, 
366,  1  L.  R.  A.  125,  7  S.  E.  335. 

See,  also,  note  5  L.  R.  A.  (N.  S.) 
613. 

At  common  law  wife  can  not  sue 
husband,  but  his  confession  of 
judgment  in  her  favor  is  good  as 
against  his  creditors. — Bennett  v. 
Bennett,  37  W.  Va.  399,  38  Am.  St. 
Rep.  47,  16  S.  E.  638. 

May  enjoin  in  equity  husband 
from  disposing  of  wedding  pres- 
ents, which  are  her  separate  prop- 
erty, but  can  not  sue  him  at  law. — 
Ilgenfritz  v.  Ilgenfritz,  49  Mo.  App. 
139. 

Wife  may  sue  firm  of  which  hus- 
band is  a  member  for  money 
loaned,  but  husband  must  be 
joined  as  plaintiff. — Alexander  v. 
Alexander,  85  Va.  353,  366,  1 
L.  R.  A.  125,  7  S.  E.  335. 

See,  also,  note  6  L.  R.  A.  507. 

o  Kashow  V.  Kashow,  3  Cal.  312. 


4  Longendyke  v.  Longendyke,  44 
Barb.  (N.  Y.)  366. 

5  Freethy  v.  Freethy,  42  Barb. 
(N.  Y.)  641. 

6  Gould  V.  Gould,  29  How.  Pr. 
(N.  Y.)  441. 

Ejectment  to  recover  separate 
estate  lies  at  suit  of  wife. — Wood 
V.  Wood,  83  N.  Y.  575,  affirming  18 
Hun  350. 

Same  doctrine  prevails  in  other 
states. — See  Gibson  v.  Herriott,  45 
Ark.  85,  96;  Carter  v.  Carter,  118 
Ind.  521,  10  Am.  St.  Rep.  161. 

7  Galland  v.  Galland,  38  Cal.  265. 

8  Schuler  v.  Savings  &  Loan 
Soc,  64  Cal.  397,  1  Pac.  479. 

'J  Tobin  V.  Galvin,  49  Cal.  34,  36. 

Enticing  away  husband,  wife 
may  sue  alone  for. — Humphry  v. 
Pope,  122  Cal.  253,  255,  54  Pac. 
847. 

10  Barker  v.  Anniston,  O.  &  O. 
Street  R.  Co.,  92  Ala.  314,  8  So. 
466:  Portland,  City  of,  v.  Taylor, 
125  Ind.  522,  25  N.  E.  459;  Bennett 


841 


§624 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  Ill, 


Thus,  it  has  been  held  that  a  married  woman  may  main- 
tain an  action  in  her  own  name,  and  without  joining  her 
husband  as  a  plaintiff,  for  (1)  alienating  her  husband's 
affections,  (2)  enticing  away  her  husband  and  depriving 
her  of  his  conjugal  society,^^  or  (3)  wrongfully  procur- 
ing her  husband  (a)  to  abandon  her,  or  (b)  to  send  her 
away,^^  or  (4)  criminal  conversation  with  her  husband  ;^^ 
and  it  seems  that  a  married  woman  may  maintain  an 
action  for  the  alienation  of  her  husband's  affections  even 


V.  Bennett,  116  N.  Y.  584,  6  L.  R.  A. 
553,  23  N.  E.  17;  Westlake  v. 
Westlake,  34  Ohio  St.  621,  32  Am. 
Rep.  397;  MehrhofE  v.  Mehrhoff,  26 
Fed.  13  (in  Kansas). 

In  Alabama  wife  must  sue  alone 
for  all  injuries  to  her  person. — 
Barker  v.  Anniston,  O.  &  O.  Street 
R.  Co.,  92  Ala.  314,  8  So.  466. 

11  As  to  wife's  right  of  action, 
see:  CAL. — Humphrey  v.  Pope, 
122  Cal.  253,  258,  54  Pac.  847.  D.  C. 
— Dodge  V.  Rush,  28  App.  Cas. 
140,  152,  8  Ann.  Cas.  671.  ILL.— 
Bester  v.  Bester,  186  111.  537, 
78  Am.  St.  Rep.  303,  52  L.  R.  A. 
630,  58  N.  E.  249.  IND.— Haynes 
V.  Nowlin,  129  Ind.  581,  583,  28 
Am.  St.  Rep.  213,  14  L.  R.  A.  787, 
29  N.  E.  389;  Holmes  v.  Holmes, 
133  Ind.  386,  388,  32  N.  E.  932. 
IOWA — Price  v.  Price.  91  Iowa 
693,  698,  i%l  Am.  St.  Rep.  360,  29 
L.  R.  A.  150,  60  N.  W.  202.  KAN.— 
Mehrhoff  v.  Mehrhoff,  26  Fed.  13 
(Kansas  statute).  KY. — Deitzman 
V.  Mullin,  108  Ky.  610,  614,  94  Am. 
St.  Rep.  390,  50  L.  R.  A.  808,  57 
S.  W.  247.  MD.— Wolf  v.  Frank, 
92  Md.  138,  140,  52  L.  R.  A.  102,  48 
Atl.  132.  MICH.— Warren  v.  War- 
ren, 89  Mich.  123,  125,  14  L.  R.  A. 
545,  50  N.  W.  842.  MINN.— Lock- 
wood  V.  Lockwood,  67  Minn.  476, 


482,  70  N.  W.  784.  MO.— Clow  v. 
Chapman,  125  Mo.  ICl,  104,  46  Am. 
St.  Rep.  468,  26  L.  R.  A.  412,  28 
S.  W.  328.  N.  Y.— Bennett  v.  Ben- 
nett, 116  N.  Y.  584,  6  L..  R.  A.  553, 
23  N.  E.  17;  Romaine  v.  Decker, 
14  App.  Div.  22,  43  N.  Y.  Supp.  79; 
Manwarran  v.  Mason,  79  Hun  593, 
29  N.  Y.  Supp.  915;  Van  Olinda  v. 
Hall,  88  Hun  453,  34  N.  Y.  Supp.  777. 
PA. — Gernerd  v.  Gemerd,  185  Pa. 
St.  233,  236,  66  Am.  St.  Rep.  646, 
40  L.  R.  A.  549,  42  W.  N.  C.  51,  39 
Atl.  884.  WASH.— Beach  v.  Brown, 
20  Wash.  266,  269,  72  Am.  St.  Rep. 
98,  43  L.  R.  A.  114,  55  Pac.  46. 

See  note  6  L.  R.  A,  554;  52 
L.  R.  A.  102,  630. 

12  Williams  v.  Williams,  20  Colo. 
51,  55,  37  Pac.  614;  Hodgkinson  v. 
Hodgkinson,  43  Neb.  269,  271,  47 
Am.  St.  Rep.  759,  27  L.  R.  A.  120, 
61  N.  W.  577;  Gernerd  v.  Gernerd, 
185  Pa.  St.  233,  236,  66  Am.  St. 
Rep.  646,  40  L.  R.  A.  549,  42 
W.  N.  C.  51,  39  Atl.  884. 

isNolin  V.  Pearson,  191  Mass. 
283,  ll4  Am.  St.  Rep.  605,  6  Ann. 
Cas.  658,  4  L.  R.  A.  (N.  S.)  643,  77 
N.  E.  890,  and  the  cases  cited  in 
the  opinion  and  in  the  notes  ap- 
pended in  the  three  annotated 
series  reprinting  the  case;  King  v. 
Hanson,  13  N.  D.  85,  97,  99  N.  W. 
1085. 


842 


ch.  IV.]  MINOR  CHILD  OR  SERVAXT INJURIES  TO.  §  025 

after  she  has  been  divorced  from  him.^*  A  married 
woman  may  maintain  an  action  in  her  own  name  witliont 
joining  her  husband  to  recover  possession  of  the  home- 
stead property.^^  And  she  may  sue  alone  to  recover 
money  loaned  by  her  which  is  her  separate  property.^*"' 
So,  if  a  wife  deserts  her  husband,  but  before  the  expira- 
tion of  the  statutory  period  required  to  make  the  deser- 
tion a  cause  of  divorce,  offers  in  good  faith  to  return  and 
resume  the  performance  of  her  marital  duties,  and  lie 
refuses  to  receive  her,  such  refusal  amounts  to  desertion 
on  his  part,  and  she  can  in  California  sue  alone  to  recover 
damages  for  personal  injuries. ^^  The  husband  is  held  to 
he  the  proper  plaintiff  in  an  action  to  recover  the  proceeds 
of  his  wife's  labor,  in  the  absence  of  an  agreement  be- 
tween them  making  such  proceeds  her  separate  prop- 
erty.^* 

§  625.  Injuries  to  minor  child  or  servant — Action  by 
PARENT  OR  MASTER.  Both  uuder  the  common  law  and  the 
procedural  codes,  a  parent  may  recover  for  damages  to  a 
minor  child,  and  a  master  for  injuries  to  a  servant.  Tn 
both  instances  the  gist  of  the  cause  of  action  is  the  loss 
of  the  service  of  the  servant  or  child.  Under  the  Cali- 
fornia code  it  is  provided  that  a  "father,  or  in  case  of 
his  death  or  desertion  of  his  family,  the  mother,  may 
maintain  an  action  for  the  death  or  injury  of  a  minor 
child,  and  a  guardian  for  the  death  or  injury  of  his  ward, 
when  such  death  or  injury  is  caused  by  the  wrongful  act 
or  neglect  of  another.  Such  action  may  be  maintained 
against  the  person  causing  the  injury  or  death,  or  if  such 
person  be  employed  by  another  person,  who  is  respon- 
sible for  his  conduct,  also  against  such  other  person."^ 

u  Postlewaite  v.  Postlewaite,  1  it  Andrews   v.   Runyon,    65   Cal. 

Ind.  App.  473,  478,  28  N.  E.  99.  629,  4  Pac.  669. 

■  5  Mauldin  v.  Cox,  67  Cal.  387,  i  s  Moseley  v,  Heney,  66  Cal.  478, 

7  Pac.  804.  6  Pac.  134. 

ifi  Evans  v.  De  Lay,  81  Cal.  103,  i  Kerr's    Cyc.    Cal.    Code    C  i  v. 

22  Pac.  408.  Proc,    §376;    Munro   v.    Pacific 

843 


§  626  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

Under  this  section  the  minor  may  sue  by  his  guardian 
and  recover  for  the  injuries  he  has  sustained;  or  the 
parent  may  sue  and  recover  for  the  damages  sustained 
by  him.  If  the  minor  sue,  he  can  not  recover  for  the  spe- 
cial damages  sustained  by  the  parent;  and  the  parent 
may  bring  and  sustain  his  action  for  such  special  dam- 
ages, notwithstanding  the  recovery  by  the  child.  If  the 
child  do  not  sue,  the  parent  can  not,  in  the  same  action, 
recover  his  special  damages,  and  also  the  damages  which 
the  child  might  recover,  if  he  brought  suit  by  his  guardian ; 
the  action,  when  brought  by  the  parent,  being  one  of  that 
class  which  is  permitted  to  be  brought  without  joining 
the  person  for  whose  benefit  it  is  brought,  and  unless  the 
action,  when  brought  by  the  parent,  is  to  be  regarded  as 
for  the  benefit  of  the  minor,  there  would  seem  to  be  no 
obstacle  in  recovering  in  an  action  brought  by  the  child. 
In  actions  for  injuries  resulting  in  death,  the  measure  of 
damages  is  left  to  the  sound  discretion  of  the  jury. 

An  action  for  an  injury  resulting  in  death,  under  the 
California  code,^  can  be  brought  by  either  the  heirs  or 
the  personal  representative,  but  separate  actions  can  not 
be  brought  or  maintained  by  both,  and  a  former  recovery 
by  an  executor  may  be  pleaded  and  proved  in  bar  to  an 
action  subsequently  brought  by  the  heirs  of  one  killed 
through  the  negligence  of  the  defendant.^ 

§  626.    Action  by  minor  or  servant.     The  injury 

to  a  minor  child  gives  a  right  of  action  for  the  wrong 
done  (1)  to  the  parent^  for  loss  of  services  and  expenses 
incurred  on  account  of  such  injury,-  and  (2)  to  the  minor 
for  damages  on  account  of  the  injuries  actually  suffered 
by  him.  The  two  causes  of  action  are  entirely  separate 
and  distinct,  and  a  prosecution  and  a  recovery  on  the  one 

Coast  Dredging  &  Reclamation  Co.,  See,  also,  ante,  §  561. 

84  Cal.  515,  18  Am.  St.  Rep.  248,  24  3  Hartigan  v.   Southern   Pac.  R. 

Pac.  303.  Co.,  86  Cal.  142,  24  Pac.  851. 

2  Kerr's    Cyc.    Cal.    Code    Civ.  i  See,  ante,  §  625. 

Proc,  §  377.  -'  See,  ante,  §  561. 

844 


Ch.  IV.]  REAL  AND  MIXED  ACTIONS.  §  627 

is  no  bar  to  a  prosecution  and  recovery  on  the  other. 
Likewise  injuries  to  a  servant  gives  rise  to  two  separate 
and  distinct  causes  of  action;  to  wit  (1)  to  the  master^ 
on  account  of  loss  of  services  and  any  expense  he  has 
been  put  to  on  account  of  physician's  attendance,  nursing, 
medicines,  and  the  like,  where  such  expenses  were  paid 
by  the  master,  and  (2)  to  the  servant  for  the  injury 
actually  sustained  by  him,  together  with  any  expense  for 
physician's  attendance,  medicines,  nursing  and  the  like, 
where  such  expenses  were  paid  by  the  servant.  The  fact 
that  the  person  injured  is  a  servant  in  the  employ  of 
another  can  not  impair  his  right  of  action  for  a  personal 
injury  to  the  infliction  of  which  he  did  not  consent.''  The 
two  causes  of  action  are  entirely  separate  and  distinct, 
and  a  recovery  on  one  will  not  be  a  bar  to  an  action  and 
recovery  on  the  other. 

§  627.  Real  and  mixed  actions — Ejectment.  At  the 
common  law,  in  real  and  mixed  actions,  joint  tenants^ 
and  the  members  of  a  partnership,-  were  required  to 
join  as  plaintiffs,^  but  tenants  in  common  were  required 
to  sever  and  each  was  required  to  sue  for  his  individual 
interest.^  Under  procedural  codes  providing  that  ''all 
persons  having  an  interest  in  the  subject  of  the  action, 
and  in  obtaining  the  relief  demanded,  may  be  joined  as 
plaintiffs,"  such  joinder  is  permitted.'^  Except  in  Cali- 
fornia, Colorado,^  Missouri,  Nevada,  North  Carolina," 
and  South  Dakota,^  a  joinder  of  tenants  in  common  less 

3  See,  ante,  §  625.  6  Weese  v.  Barker,  7  Colo    178 

4  Bliss  on  Code  Pleading,  §  28.        2  Pac.  919  (one  of  several  tenants 

2  See    Bush    v.    Bradley,    4    Day  "^"°'  ''''  '""^  '""""""'■^  °'  "^^  ^°- 
(Conn.)  303.  ^'^^  possession). 

3  1  Chitty's  Pleading  (16th  Am.  '  ^^"^^    ''•   Greenlee,    90    N.    C. 
ed.),  p.  65.  317  (rule  same  as  in  Colorado,  as 

4  As  to  tenants  in  common,  see,  given  in  last  footnote). 

ante,  §  599.  s  Mather  v.  Dunn,  11  S.  D.  196, 

r.  Woodfork  v.  Ashby,  59  Ky.   (2      74  Am.  St.  Rep.  788,  76  N.  W.  922. 
Mete.)   288. 

845 


§  627  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

than  all  is  not  permitted.  They  must  all  sue,  or  each 
one  separately.^  In  the  states  named,  and  perhaps 
others,  however,  a  joinder  of  less  than  all  is  permitted.^" 
Actions  of  ejectment  must  be  prosecuted  in  the  name  of 
the  real  party  in  interest,^  ^  and  the  person  having  the 
legal  title  to  the  land,  and  not  the  one  having  the  equitable 
title,  is  such  party.^^  And  to  entitle  him  to  sue  he  must 
be  out  of  possession.13  In  California^-*  and  Nevada^^  the 
heir  may  maintain  ejectment  when  there  is  no  administra- 
tion. The  rule  that  each  of  several  heirs  may  sue  in 
ejectment  for  nonpayment  of  rent  without  joining  the 
others,  applies  to  the  case  of  tenants  in  common  of  an  in- 
corporeal hereditament  of  rents  charged  in  fee,  and  no 
reversion ;  the  rents  are  apportioned  in  either  case.^^  The 
grantee  may  bring  an  action  to  recover  lands  conveyed 
while  in  adverse  possession,  in  the  name  of  the  grantor.^' 
Lessees  in  the  actual  possession  of  land  from  which  they 
are  ousted  by  an  intruder,  without  title  or  color  of  right, 

9  Cruger  v.  McLaury,  41  N.  Y.  13  Taylor  v.  Crane,  15  How.  Pr. 
219,  affirming  41  Barb.  642;    Has-      (N.  Y.)   358. 

brouck  V.  Bunce,  62  N.  Y.  475,  479,  n  UpdegrafE    v.    Trask,    18    Cal. 

reversing  3  Thomp.  &  C.  309.  458;    Soto  v.  Kroder,  19   Cal.  .87; 

10  Binswanger  v.  Henninger,  11  Woodworth,  Estate  of,  31  Cal.  595, 
Alaska  511;  Morenbaut  v.  Wilson,  604;  Chapman  v.  Hollister,  42  Cal. 
,52  Cal.   263,  269;    Moulton  v.   Mc-  462,  464. 

Dermott,  80  Cal.  629,  630,  22  Pac.  Action   for  possession    by   heir 

296;  Mather  v.  Dunn,  11  S.  D.  196,  can   not   be   maintained   until    ad- 

74  Am.  St.  Rep.  788,  76  N.  W.  922.  ministration    has    been    closed    or 

See  note  74  Am.  St.  Rep.  790.  property  distributed  by  decree  of 

11  Ritchie  v.  Borland,  6  Cal.  33.  probate   court. — Chapman    v.    Hol- 
As  to  real  party  in  interest,  see,  lister,    42    Cal.    462;    Thorpe    v. 

ante,  §§  583-587.  Sampson,  84  Fed.  66. 

12  Green  v.  Jordan,  83  Ala.  220,  15  Gossage  v.  Crown  Point  Gold 
3    Am.    St.    Rep.   711,    3    So.    513;  &  S.  Min.  Co.,  14  Nev.  153,  158. 
Emeric  v.  Penniman,  26  Cal.  119,  16  Cruger    v.    McCaughiy,    51 
122;    O'Connell    v.    Dougherty,    32  Barb.    (N.    Y.)     642,    affirmed,    41 
Cal.  458,  462;  Hartley  v.  Brown,  46  N.  Y.  219. 

Cal.  204;   Fair,  Estate  of,  132  Cal.  17  Lowber  v.  Kelly,  17  Abb.  Pr. 

523,   536,   84   Am.   St.    Rep.   70,   60       (N.    Y.)    452;    affirmed,    22    N.    Y. 
Pac.  442,  64  Pac.  1000.  Super.  Ct.  Rep.   (9  Bosw.)   494. 

846 


ch.  IV.] 


SEDUCTION — ACTION  FOR. 


§628 


may  maintain  ejectment.^ ^  And  it  may  be  maintained 
by  the  vendor  of  land  against  a  vendee  in  possession 
under  a  contract  of  purchase,  who  refuses  to  comply  with 
the  terms  and  conditions  of  the  contract.^'-*  A  deed  con- 
veying title  to  the  members  of  a  firm  enables  one  partner 
to  maintain  ejectment  against  an  intruder.-'* 

§  628.  Seductiox  :  Acxiox  for — At  commox  law.  It 
has  been  said  that,  at  common  law,  no  action  could  be 
maintained  to  recover  damages  for  the  seduction  of  a 
female,  where  the  act  amounted  to  a  felony;  but  there 
are  cases  to  the  effect  that  it  is  no  objection  to  the  action 
that  the  wrong  complained  of  was  accomplished  by  force.^ 
In  those  cases  in  which  the  offense  was  not  a  felony,  the 
father,^  or  the  master,^  where  she  was  at  service  in  the 
employ  of  another  at  the  time,  could  maintain  a  civil 
fiction  for  damages  against  the  seducer.  This  action  was 
l)ased,  however,  not  upon  the  injury  or  wrong  done  the 
female,  but  upon  the  loss  of  services,^  the  same  as  in  the 


18  Kirsch  v.  Brigard,  63  Cal.  319. 
See  Kersch  v.  Smith,  64  Cal.  13, 
14,  27  Pac.  942. 

]!>  Hicks  V.  Lovell,  64  Cal.  14,  49 
Am.  Rep.  679,  27  Pac.  492;  Wallace 
V.  Maples,  79  Cal.  433,  21  Pac.  860; 
Connolly  v.  Hingley,  82  Cal.  642, 
23  Pac.  273;  Coates  v.  Cleaves,  92 
Cal.  427,  28  Pac.  580;  Meyer  v. 
Garrett,  96  Pa.  St.  376. 

20  Smith  V.  Smith,  80  Cal.  323,  21 
Pac.  4,  22  Pac.  186,  549. 

1  Marshall  v.  Taylor,  98  Cal.  55, 
35  Am.  St.  Rep.  144,  32  Pac.  867; 
Kennedy  v.  Shea,  100  Mass.  147,  1 
Am.  Rep.  101;  Furman  v.  Apple- 
gate,  23  N.  J.  L.  (3  Zabr.)  28; 
Chamberlain  v.  Hazelwood,  5  Mees. 
&  W.  515. 

2  1  Chitty's  Pleading  (16th  Am. 
ed.),  p.  69. 

3  Id. 


4  See:  ILL.— White  v.  Murtland, 
71  111.  250,  252,  22  Am.  Rep.  100. 
MASS.— Kennedy  v.  Shea,  110 
Mass.  147,  151,  14  Am.  Rep.  584; 
Blanchard  v.  Ilsley,  120  Mass.  487, 
21  Am.  Rep.  585.  N.  J.— Coon  v. 
Moffett,  3  N.  J.  L.  (2  Pen.)  583, 
4  Am.  Dec.  392.  N.  Y.—  Furman 
V.  Van  Sise,  56  N.  Y.  435,  15  Am. 
Rep.  441;  Hamilton  v.  Lomax,  26 
Barb.  615,  6  Abb.  Pr.  142;  Badgley 
V.  Decker,  44  Barb.  577.  N.  C— 
Abbott  V.  Hancock,  123  N.  C.  99, 
31  S.  E.  268.  PA.— Weaver  v. 
Bochert,  2  Pa.  St.  80,  44  Am.  Dec. 
159.  ENG.— Gray  v.  Jeffries,  Cro. 
Eliz.  55,  78  Eng.  Retir.  316;  Barham 
v.  Dennis,  Cro.  Eliz.  770,  78  Eng. 
Repr.  1001;  Hall  v.  Hollander,  4 
Barn.  &  C.  660,  662,  10  Eng.  C.  L. 
746,  747,  7  Dow.  &  Ry.  138,  107 
Eng.   Repr.   1206. 

See,  also,  3  Bl.  Com.  141. 


847 


§  628  CODE  PLEADING   AND   PRACTICE,  [Pt.  Ill, 

case  of  a  wrongful  personal  injury;^  and  to  entitle  to  a 
recovery  there  was  required  to  be  evidence  to  support 
the  allegation  per  quod  servitium  amisit.^  But  services 
of  the  slightest  kind,  or  her  liability  to  serve,  or  the  fact 
that  she  was  at  the  time  living  with  her  father  as  a  part 
of  his  family  and  liable  to  his  control  and  command,' 
was  sufficient  to  satisfy  the  requirements  in  this  regard. 
In  those  cases  in  which  the  daughter  was  under  age  she 
was,  according  to  some  of  the  cases,  presumed  to  be  under 
the  control  of,  and  in  the  service  of,  her  father  so  as  to 
entitle  him  to  maintain  an  action  for  her  seduction,  with- 
out further  proof  of  actual  service.  In  those  cases  in 
which  she  had  attained  the  age  of  majority,  she  was 
required  to  be  in  her  father 's  services,  so  as  to  constitute, 
in  law  and  in  fact,  the  relation  of  master  and  servant,  in 
order  to  confer  upon  the  father  the  right  to  sue  in  a  civil 
action  for  her  seduction  f  but  the  relation  of  master  was 
presumed  to  result  constructively  from  the  father 's  right 
to  reclaim  the  custody  of  her  person,  from  his  responsi- 
bility for  her  education,  and  from  his  obligation  to  sup- 
port her  if  she  became  sick  or  disabled,  whether  at  home 
or  absent  therefrom.^    In  the  case  of  a  female  who  had 

5  See,  ante,  §625.  &  J.    (Md.)    27,   9   Am.   Dec.   486; 

6  See  1  Chitty's  Pleading  (16tli  Nickleson  v.  Stryker,  10  Johns. 
Am.  Ed.),  p.  69;  2  Id.  558;  Dean  (N.  Y.)  115,  6  Am.  Dec.  318;  Stew- 
V.  Peel,  5  East  45,  7  Rev.  Rep.  art  v.  Kip,  1  Wend.  (N.  Y.)  376: 
Erg.  Repr.  653,  102  Eng  Repr.  986.  Millar    v.    Thompson,    1    Wend. 

7  Patterson  V.  Thompson,  24  Ark.  (N.  Y.)  447;  Hewitt  v.  Prime,  21 
55;  Robinson  v.  Burton,  5  Harr.  Wend.  (N.  Y.)  79;  Parker  v. 
(Del.)  335;  Ellington  v.  Ellington,  Elliott,  1  Gilm.   (Va.)    33. 

47  Miss.  329;    Sutton  v.  Huffman,  9  Id.;    Kennedy  v.   Shea,   100 

32  N.  J.  L.   (3  Vr.)    58;    Manly  v.  Mass.   150,  97   Am.    Dec.   91;    Van 

Field,   7   J.   Scott  N.    S.    (7   C.  B.  Horn  v.   Freeman,  6   N.    J.   L.    (1 

N.  S.)  96,  97  Eng.  C.  L.  95;  Harris  Halst.)    322;    Martin   v.    Payne,    9 

V.    Butler,    2    Mees.    &    W.    539;  Johns.    (N.    Y.)    387,    6    Am.    Dec. 

Maunder  v.   Venn,    1   Moo.    &    M.  288 ;  Bartley  v.  Richtmyer,  4  N.  Y. 

324,  22  Eng.  C.  L.  324;    Terry  v.  38,  reversing  2  Barb.  182;   Mulve- 

Hutchinson,  L.  R.  3  Q.  B.  599.  .  hall  v.  Millard,  11  N.  Y.  343;  Horn- 

sLockwood    V.    Betts,    8    Conn,  keth  v.  Burr,  8  Serg.  &  R.   (Pa.) 

130;  Mercer  v.  Walmesley,  5  Har.  36,  11  Am.  Dec.  578. 

848 


ch.  IV.]  ACTION  FOR  SEDUCTION — UNDER  CODES.  §  629 

attained  her  majority  an  express  contract  to  serve,  or  the 
payment  of  Avages,  need  not  be  shoAVTi;  and  the  circum- 
stance of  her  being  absent  at  the  time  was  immaterial, 
where  she  intended  to  return  to  her  father's  home.^'^  But 
where  the  daughter  was  actually  in  the  service  of  another 
person  at  the  time,^^  or  was  in  the  defendant's  service,^- — 
unless  he  hired  her  for  the  purpose  of  seduction, ^^ — no 
action  lay  by  the  father  for  her  seduction,  even  though 
the  daughter  returned  home  and  incurred  expense  to  her 
father  by  reason  of  and  on  account  of  such  seduction  ;^^ 
and  especially  was  this  true  w^here  the  daughter  had 
attained  her  majority,  and  was  absent  from  home  under  a 
contract  made  for  her  oavh  benefit,^^  although  she  had 
the  intention  of  returning  to  her  father's  ser\dce  after 
she  had  quitted  that  of  the  defendant, ^^  and  although, 
during  any  leisure  time,  with  the  permission  of  her  mas- 
ter, she  had  been  in  the  habit  of  assisting  her  father  in 
the  work  by  which  he  earned  his  livelihood.^^ 

§  629.    Under  procedural  codes — In  general.  The 

procedural  codes,  and  the  statutes  governing  in  actions 
for  damages  for  seduction,  in  the  various  jurisdictions, 
have  made  radical  changes  in  the  rules  of  the  common 
law  in  regard  to  liabilities  for  seduction,  and  in  regard 

10  See  authorities  cited  in  foot-  14  Davies  v.  Williams,  10  Ad.  & 

note  7,  tiiis  section;    also,  Green-  E.  N.  S.    (10  Q.  B.)    725,  59   Eng. 

wood  V.  Greenwood,   28   Md.   370;  C.   L.    723;    Thompson  v.   Ross,    5 

Sutton  V.  Huffman,  32  N.  J.  L.   (3  Hurlst.  &   N.   16;    Eager  v.   Grim- 

Vr.)  58;  Lipe  v.  Eisenlord,  32  N.  Y.  ^0°^'  1  Welsh..  H.  &  G.  (1  Exch.) 

229;  Griffiths  v.  Teetgen,  15  C.  B.  ^^'  ^^^"^  ^-  Walton,  L.  R.  2  C.  P. 


344. 

11  Dean    v.    Peel,    5    East    45,    7 
Rev.  Rep.  653,  102  Eng.  Repr.  986. 


615;    Terry   v.   Hutchinson,    L.    R. 
6   Q.   B.    599. 

15  Lee  V.  Hodges,  13  Graft.  (Va.) 
726. 


i2Harrisv.  Butler,  2  Mees.  &W.  16  Blaymire  v.  Hayley,   6  Mees. 

539.  &  w.  55. 

13  Speight  V.   Oliviera,   2   Stark.  i7  Thompson  v.  Ross,  5  Hurl.  & 

493,  3  Eng.  C.  L.  501.     See  Dain  N.    16;    Hedges  v.   Tagg,   L.    R.   7 

V.  Wickoff,  7  N.  Y.  191,  18  N.  Y.  Exch.    283,    41    L.   J.   N.    S.    Exch. 

46,  72  Am.  Dec.  493.  169. 

I  Code  PI.  and  Pr.— 54  g^Q 


§  629  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

to  the  actions  for  damages  therefor.  The  right  to  main- 
tain the  action  has  been  greatly  enlarged,  and  the  web  of 
technicalities  swept  away,  so  that  now  such  an  action  may 
be  maintained  by  the  mother^  as  well  as  the  father,  with 
certain  restrictions  in  favor  of  the  father  as  head  of  the 
family.-  The  female  injured  is  also  permitted  to  main- 
tain an  action  for  damages,^  but  her  affianced  husband 
may  not  maintain  such  an  action  against  the  seducer."' 

We  have  already  seen  that,  under  the  common  law, 
where  the  seduction  complained  of  was  a  felony,  there 
could  be  no  civil  action  for  damages.^  Many  of  the 
American  statutes,  as  in  California,  make  seduction  a 
felony,**  but  the  provisions  of  the  California  Code  of  Civil 
Procedure"^  gives  the  right  to  maintain  a  civil  action  for 
damages  notwithstanding  the  felonious  character  of  the 
offense.  Whether  the  common-law  rule,  which  prohibits 
any  one  from  maintaining  an  action  based  upon  a  tort  who 
has  not  suffered  actual  legal  damages,  is  changed  by  this 
provision  of  the  procedural  code,  is  not  free  from  doubt. 

''Seduction,"  as  used  in  the  procedural  codes  and  stat- 
utes giving  a  right  of  action  to  recover  damages  therefor, 
as  applied  to  the  conduct  of  a  man  towards  a  woman, 
means  and  necessarily  includes  the  use  of  some  influence, 
promise,  art,  or  means  on  the  man's  part  by  or  through 
which  he  induces  the  woman  to  surrender  her  chastity 
and  her  virtue^  to  his  embraces ;  there  must  be  something 

1  Mother  abandoned  by  husband,  4  Case  v.  Smith,  107  Mich.  416, 
who  keeps  a  boarding  house  on  61  Am.  St.  Rep.  341,  31  L.  R.  A. 
her   sole   and   separate    account,      282,  65  N.  W.  279. 

may   maintain   an    action    for   the  5  gee,  ante,  §  628. 

seduction  of  her  daughter,  who  has  ^  g^^   ^^^.^.^   ^^^    ^^j    Penal 

attained  her  majority,  where  the      ^^^^^  gg  266  et  seq. 

daughter  lives  with  and  performs  ,              ^,^,^. 

^      ^         ,      4.  ^v,     1         1  ^  See  Kerr  s  Cyc.  Cal.  Code  Civ. 

services  for  her  about  the  board-  eo  n-r.    or,r 

T^    J   ,             T-w     1         AA  Proc,  §§374,  375. 
ing  house. — Badgley  v.  Decker,  44 

Barb    (NY)   577  8  Inducing  surrender  of  chastity 

See    also,  note  14  L.   R.  A.  701.  is   seduction.— Graham  v.   McRey- 

2  See,  post,  §  630.  nolds,  90  Tenn.  673,  13  S.  W.  272. 

3  See,  post,  §  631.  Unchaste  woman  can  not  be  se- 

850 


C'll.  IV.]  SEDUCTION — ACTION  BY  PARENT,  ETC.  §  630 

more  than  mere  reluctance  on  the  woman's  part  to  com- 
mit the  act ;  her  consent  must  be  obtained  by  flattery, 
false  promises,  urgent  importunity,^  based  upon  profes- 
sions of  attachment,  and  the  like,  of  the  man  for  the 
woman ;  and  the  woman,  relying  solely  upon  such  flattery, 
false  promises,  artifice,  and  importunity,  surrenders  her 
chastity  and  virtue  to  the  seducer.^*^  It  has  also  been  held 
that  fraud  in  obtaining  consent  of  parents  to  the  mar- 
riage of  their  daughter  with  a  man  who  already  has  a 
wife  living  from  whom  he  is  not  divorced,  vitiates  such 
consent  so  as  to  make  him  liable  for  seduction. ^^ 

§  630. By  paeent,  guardian  or  master.    The 

procedural  codes,  wiping  away  the  technicalities  of  the 
common-law  doctrine,  confers  a  right  to  maintain  an 
action  for  damages  for  the  seduction  of  a  female  upon 
various  persons.  The  California  Code  of  Civil  Procedure 
provides  that  a  father,  or  in  case  of  his  death  or  desertion 
of  his  family,  the  mother,  may  prosecute  as  plaintiff  for 
the  seduction  of  the  daughter,  and  the  guardian  for  the 
seduction  of  the  ward,  though  the  daughter  or  Avard  be 
not  living  with  or  in  the  service  of  the  plaintiff  at  the 
time  of  the  seduction  or  afterwards,  and  there  be  no  loss 
of  service.^  Under  this  statute,  and  under  all  procedural 
statutes  having  a  like  provision,  the  old   common-law 

duced. — 54  Tex.  Cr.  Rep.  619,  114  reason  of  and  through  such  artifice 
S.  W.  841.  3,nd  deception  practiced  on  her  by 


0  Importunity  and  solicitation 
merely,  to  which  the  woman 
yields,  is  seduction. — Bradshaw  v. 


the  defendant  she  submitted  to 
sexual  intercourse  with  him. — 
Breon   v.   Hinkle,   14   Ore.  494,  13 

Pac    '^8d 

Jones,  103  Tenn.   331,  76  Am.  St.  ,  '  t"  tt.    *  v        ioa  xt    v 

'  '  11  Lawyer  v.  Fntcher,  130  N.  Y. 

Rep.  655,  52   S.  W.  1072.  239,  27  Am.  St.  Rep.  521,  14  L.  R.  A. 

10  See    Marshall    v.    Taylor  ,  98  700,  29  N.  E.  267. 

Cal.   55.   35   Am,   St.    Rep.   144,   32  1  Kerr's    Cyc.    Cal.    Code    Civ. 

Pac.  867.  Proc,  §  375. 

Must  show  defendant   employed  Common-law  right  of  action  for 

artifice  or  deceit  such  as  was  cal-  seduction  of  a   grand-daughter,    a 

culated  to  mislead  a  virtuous  member  of   the  household,   exists 

woman;    that   she   was   misled   in  in  Oregon. — Anderson  v.  Aupperle, 

consequence  thereof;  and  that  by  51  Ore.  556,  95  Pac.  330. 

851 


§  630  CODE  PLEADING  AND  PRACTICE.  [Pi.  Hi, 

fiction  of  '' service"-  is  dispensed  with  as  a  foundation 
of  the  right  of  the  parent  to  sue  f  and  we  may,  therefore, 
conclude  that  the  parent  has  the  right  now,  independently 
of  any  loss  of  services,  to  recover  to  the  same  extent  as 
formerly.  If  this  be  true,  it  would  follow  that  a  recovery 
by  the  parent  would  be  a  bar  to  an  action  brought  by  the 
daughter,  as  provided  for  in  procedural  codes  ;^  and  tliat 
a  recovery  by  the  daughter  would  be  a  bar  to  an  action 
brought  by  the  parent  for  more  than  special  damages,  if 
any  were  sustained,  which  from  their  nature  could  not 
have  been  included  in  the  daughter's  action.^'  Some  of 
the  procedural  codes,  while  containing  identical  provi- 
sions with  the  California  code,  provide  also  in  reference 
to  this  particular  matter. ** 

Cinder  the  California  statute,  and  all  statutes  with  sim- 
ilar provisions,  the  right  of  the  father,  mother  or  guard- 
ian to  maintain  an  action  for  the  seduction  of  a  female, 
does  not  depend  upon  the  question  whether  the  female  is 
living  with  such  father,  mother  or  guardian  and  in  his 
service.  Some  questions  as  to  the  measure  of  damages, 
and  the  right  to  maintain  several  actions  for  the  same 
seduction,  arise  which  are  not  free  from  difficulties.  If 
the  female  who  has  been  seduced  be  at  the  time  a  minor, 
and  living  with  her  father,  the  loss  of  service  accrues  to 
him.  Can  she  recover  for  that?  May  she  maintain  the 
action  and  recover  all  other  damages,  and  her  father 
maintain  a  separate  action  and  recover  for  the  loss  of 
services !    If  so,  can  he  recover  anything  more  unless  he 

2  See,  ante,  §  628,  footnote  4,  and  4  See,  post,  §  631. 

text  therewith.  5  Evidence  of  seduction  admitted 

Female    under   age   loss   of  ser-  ^^  enhance  damages  for  breach  of 
vices  presumed. — Schmit  v.  Mitch- 


ell, 59  Minn.  251,  61  N.  W.  140. 
3  See    Hancock    v.    Wilhoite,    62 


promise  of  marriage,  a  bar  to  sub- 
sequent suit  by  the  father  for  the 


Ky.  (1  Duv.)  313;  Watson  v.  Wat-      seduction.-Jarvis    v.    Johnson,    2 
son,  49  Mich.  510,  14  N.  W.  .489;       O^io  ^ec.  Repr.  312. 
Franklin  v.   McCorkle,  84  T  e  n  n.  6  See,  post,  §  631. 

(16  Lea)  609,  57  Am.  Rep.  244. 

852 


ell.  IV.]  ACTION  BY  UNMARRIED  FEMALE.  §  631 

has  incurred  expenses  directly  caused  by  the  seduction? 
If  the  seduction  occurs  after  she  has  attained  her  major- 
ity, can  the  father  maintain  any  action  therefor?"  If  he 
can,  does  the  recovery  go  for  his  benefit,  or  only  for  the 
(laughter's?  Would  a  recovery  by  him  bar  an  action 
brought  by  the  daughter !  Or  a  recovery  by  the  daughter 
bar  an  action  brought  by  the  father?  The  California 
Civil  Code  declares  that  ''the  damages  for  seduction  rest 
in  the  sound  discretion  of  the  jury";^  and  also  provides 
that  "the  rights  of  personal  relation  forbid :  3.  The  seduc- 
tion of  a  wife,  daughter,  orphan  sister,  or  servant."^  The 
rule  in  relation  to  actions  for  torts  is,  that  "the  person 
who  sustains  an  injury  is  the  person  to  bring  an  action  for 
the  injury  against  the  wrongdoer.  "^*^ 

§631. By    unmarried    female.     Under    the 

doctrine  of  the  maxim  nulla  injuria  est  qusB  in  volentem 
fiat — that  is  no  injury  which  is  done  to  a  willing  party, 
tlie  common  law  did  not  permit  a  female  to  sue  for  dam- 
ages for  her  own  seduction.  Under  the  California  pro- 
cedural code,  and  there  are  similar  provisions  in  other 
jurisdictions  having  the  reformed  judicature,  an  unmar- 
ried female  may  prosecute,  as  plaintiff,  an  action  for  her 
own  seduction,  and  may  recover  therein  such  damages, 
pecuniary  and  exemplary,^  as  are  assessed  in  her  favor.- 
No  restrictions  are  imposed  upon  her  right  to  maintain 
the  action  in  California,  and  an  unmarried  female,  what- 
ever her  age,  whether  living  with  her  father  or  guardian, 
or  not,  may  maintain  the  action.  Some  of  the  other  pro- 
cedural codes,  with  provisions  identical  with  those  of 
California,  contain  a  provision  restricting  the  right  of 

"  Under  Iowa  Code  no  action  can  lo  Dicey  on  Parties,  330. 

]w  maintained  by  a  parent  for  the  i  Mental  suffering  as  an  element 

seduction  of  an  adult  child. — Dodd  of  damages   in  an  action   by   a 

V.    Focht,   72   Iowa  579,  34   N.   W.  female    for   her   own    seduction. — 

425.  See  note   collecting  the  cases.  33 

sKerrs    Cyc.    Cal.    Civ,    Code,  L.  R.  A.  (N.  S.)  99. 

§  339.  '■i  Kerr's    Cyc.    Cal.    Code    C  i  v. 

9  Id.,  §  349.  Proc,   §  374. 

853 


§  631  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

au  unmarried  female  to  sue  for  her  own  seduction  to 
those  over  twenty-one  years  of  age;  and  providing  that 
the  prosecution  of  an  action  to  judgment  by  the  father, 
mother,  or  guardian  shall  be  a  bar  to  an  action  by  such 
unmarried  female/^  Where  a  female  has  been  seduced 
under  a  promise  of  marriage,  she  has  a  right  of  action 
(1)  for  breach  of  the  promise  of  marriage,  and  (2)  an 
independent  action  for  the  seduction  ;^  but  where  she  has 
brought  an  action  for  the  breach  of  the  promise  of  mar- 
riage in  which  she  has  pleaded  and  proved,  as  she  is  en- 
titled to  do,^  the  seduction  in  aggravation  of  damages  for 
the  breach,  and  has  recovered  exemplary  damages  in  such 
action,  she  can  not  thereafter  maintain  a  separate  action 
for  the  tort  committed  in  the  seduction.*^  On  the  other 
hand,  a  judgment  in  tort  for  the  seduction,  will  bar  a 
subsequent  action  for  the  breach  of  promise  of  marriage  -^ 
although  the  contrary  has  been  held  on  the  ground  that 
the  allegation  of  the  promise  of  marriage  in  the  action 
for  seduction  was  not  a  necessary  element  in  the  action, 
and  was  alleged  for  the  purpose  of  showing  the  means  by 
which  the  seduction  was  accomplished.^ 

3  See  Oregon  Code,  §  35.  Va.  240,  26   Am.  St.   Rep.  921,   12 

4  Lanigan  v.  Neely,  4  Cal.  App.      S.  E.  698.    WIS.-Giese  v.  Schultz, 
760,  89  Pac.  441.  ^^  Wis.  462,  10  N.  W.  598. 

^.^  See  15  R.  C.  L.  968. 

3  See,  among  other  cases:  LALi.  xt     i      ^  /-.  i     a 

•  "■        ^  6  Lanigan  v.  Neely,  4  Cal.  App. 

—Lanigan  v.   Neely,   4   Cal.   App.  „^^^^  ^^  p^^    ^^^.   Haymond  v. 

760,  89   Pac.   411.     COLO.— Harri-  gaucer,  84  Ind.  3;    Sheahanv. 

son   V.    Carlson,   45   Colo.    55,    101  Barry,    27    Mich.    217;    Osmun    v. 

Pac.    76.     MICH.— Sheahan    v.  Winters.  25  Ore.  260,  35  Pac.  250. 

Barry,  27   Mich.  217.     N.  J.— Coil  '  Reiger  v.  Abrams,  98  Wash.  72, 

V.   Wallace,   24  N.  J.  L.    (4  Zab.)  L.   R.  A.  1918A,  362,  167  Pac.  76. 

291.    N.  C. — Hood  V.  Sudderth,  111  See  Jarvis  v.  Johnson,  2  Ohio  Dec. 

X.  C.  215,  16  S.  E.  397.    WASH.—  Repr.  312. 

Rieger   v.    Abrams,   98   Wash.    72,  8  Ireland  v.  Emerson,  93  Ind.  1, 

L.   R.  A.  1918A,  362,  167  Pac.   76.  47     Am.     Rep.     364;     Genmill     v. 

W.  VA.— Dent  v.  Pickens,   34   W.  Brown,  25  Ind.  App.  6,  56  N.  E.  691. 


854 


CHAPTER  V. 

PARTIES  DEFENDANT ACTIONS  EX  CONTRACTU,  EX  DELICTO, 

AND  SUITS  IN  EQUITY. 

§  632.    In  general — Plaintiffs  can  not  be. 

§  633.    At  common  law. 

§  634.    Under  procedural  codes — In  general. 

§  635.    Joinder  of  defendants — In  general. 

§  636. Persons  who  may  be  joined. 

§  637. Persons  who  must  be  joined — In  general. 

§  638, Interest  in  or  title  to  property. 

§  639. Persons  necessary  to  complete  determina- 
tion. 

§  640.    Grounds   for   omitting   or   dispensing   with    parties 

defendant. 

§  641.  Making  defendants  persons  refusing  to  join  as  plain- 
tiffs. 

§  642.    Annulling  patent  to  land. 

§  643.    Assessors — In  actions  against. 

§  644.    Associations  or  unincorporated  societies. 

§  645.    Political  parties. 

§  646.    Breach  of  contract. 

§  647.    Bringing  in  new  parties — In  general. 

§  648.    Necessity  for  and  grounds  of. 

§  649.    Jurisdiction  and  authority. 

§  650.    Mode  of  bringing  in. 

§  651.    Common  or  general  interest. 

§  652.    Coparceners. 

§  653.    Corporations. 

§  654.    Decedent 's  personal  representative. 

§  655.    Ejectment. 

§  656.    Equity  suits. 

§  657.    Executors  and  administrators. 

§  658.    Fictitious  parties  defendant. 

§  659.    Fraud. 

§  660.    In  actions  to  determine  conflicting  claims  to  real  property. 

855 


CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

§  661.  Infringement  of  patents. 

§  662.  Injunction. 

§  663.  Injury  or  death — Of  minor  child  or  ward. 

§  664.  Of  person  not  a  minor. 

§  665.  Injury  to  property  caused  by  negligent  or  wrongful  act. 

§  666.  Interpleader — Conflicting  claimants. 

§  667.  Intervention — In  general. 

§  668.  Actions  in  which  authorized. 

§  669.  Grounds  for  and  time  of  intervention. 

§  670.  Application  for  leave  to  inteiwene :  Proceedings  on. 

§  671.  Rights  and  liabilities  of  interveners. 

§  672.  Proceedings  after  intervention. 

§  673.  Joint  tenants. 

§  674.  Joint  tort-feasors. 

§  675.  Legacy  charged  on  land. 

§  676.  Married  women — In  general. 

§  677.  In  actions  ex  contractu. 

§  678.  In  actions  ex  delicto. 

§  679.  Minors  or  infants,  insane  and  incompetent  persons. 

§  680.  ]\Iisjoinder  of  defendants — In  general. 

§  681.  In  suits  in  equity. 

§  682.  Mortgage  and  mechanics'  lien  foreclosure. 

§  683.  Non- joinder  of  defendants — In  actions  at  law. 

§  684.  In  suits  in  equity. 

§  685.  Time  and  mode  of  objecting. 

§  686.  Persons  severally  bound  on  same  obligation  or  instrument. 

§  687.  Persons  not  bound. 

§  688.  Principal  and  agent. 

§  689.  Quo  warranto — Parties  plaintiff  and  defendant. 

§  690.  Receivers. 

§  691.  Specific  performance — Constructive  trust. 

§  692.  Striking  out  defendants — In  general. 

§  693.  Persons  who  may  not  be  dismissed. 

§  694.  Substitution  of  parties— In  general. 

§  695.  Persons  entitled  to  be  substituted. 

§  696.  Grounds  for  substitution. 

§  697.  Application  for  substitution:  Proceedings  thereon. 

§  698.  Mode  of  substitution  of  parties. 

§  699.  Proceedings  after  substitution. 

856 


Ch.  v.]  DEFENDANTS — WHO  CAN  NOT  BE.  §§  632,  633 

§  700.  Tenants  in  common. 

§  701.  Tort  actions. 

§  702.  Trespass. 

§  703.  Trustees. 

§  632.  In  general — Plaintiffs  can  not  be.  "We  have 
already  seen  that  a  person  can  not  sue  himself.^  That  is 
to  say,  a  person  can  not  be  both  plaintiff  and  defendant 
in  an  action  at  law,  whether  ex  contractu  or  ex  delicto, 
or  in  a  suit  in  equity,  in  w^hatever  different  capacities  he 
may  act,^  and  he  sue  in  one  capacity  and  defend  in 
another.^  Under  this  general  rule,  when  an  action  has 
gone  to  judgment  and  the  judgment  is  subject  to  col- 
lateral attack,  mere  identity  of  the  names  of  the  plaintiff 
and  defendant  will  not  be  taken  to  establish  the  fact  that 
the  plaintiff  and  defendant  are  one  and  the  same  person ; 
but  as  every  presumption  is  to  be  indulged  in  favor  of 
the  judgment,  the  court  mil  presume  that  the  plaintiff 
and  defendant  were  separate  persons  having  the  same 
name.* 

Exception  to  the  rule  said  to  exist  in  the  case  of  a 
rejected  claim  against  the  estate  of  a  deceased  person, 
when  the  guardian  of  the  claimant  and  the  administrator 
of  the  estate  are  one  and  the  same  person.^ 

<§  633.  At  common  law.  At  common  law,  all  persons 
who  were  jointly  liable  on  the  same  contract  or  obligation 
must  be  joined  in  an  action  thereon.  In  determining 
whether  such  liability  was  joint,  the  rule  was  that  "sev- 

1  See,  ante,  §  577.  mon    or    charge    himself    as    gar- 

2  See  Byrne,  94  Cal.  576,  29  Pac.  nishee,  see  Baker  v.  Doe.  8S  S.  C. 
1115.  30  Pac.  196;  Buckeye  Refin-      69,  34  L.  R.  A.  (N.  S.)  510,  70  S.  E. 

431,  and  note  attached  thereto  in 


ing  Co.  V.  Kelly,  163  Cal.  8,  Ann. 
Cas.  1913E,  840,  124  Pac.  536; 
Habeiiy  v.   Haberly,   27  Cal.  App, 


L.   R.  A. 

•".  Buckeye  Refining  Co.  v.  Kelly, 
163   Cal.   8.   Ann.   Cas.    101.1':.   840, 
139.  149  Pac.   53.  ^24  Pac.  536. 

See,  also,  cases  cited,  ante,  §  577,  4  ](] 

footnote  2.  .-,  Habeiiy    v.    Habeiiy,    27    Cal. 

As  to  right  of  plaintiff  to  sum-      App.  139,  149  Pac.  53, 

857 


H  634,  635  code  pleading  and  practice.  [Pt.  Ill, 

eral  persons  contracting  together  with  the  same  party 
for  one  and  the  same  act  shall  be  regarded  as  jointly,  and 
not  individually  or  separately,  liable,  in  the  absence  of 
any  express  words  to  show  that  a  distinct  as  well  as  entire 
liability  was  intended  to  fasten  on  the  promisors."^ 

§  634.  Under  procedural  codes — In  general.  The  rule 
of  the  common  law  as  to  whether  parties  to  a  contract 
were  bound  jointly  or  severally  has  been  changed  by  the 
procedural  codes  in  most  of  the  states  having  the  re- 
formed system  of  judicature.  In  California,  the  Civil 
Code  provides  that  when  all  the  parties  who  unite  in  a 
promise  receive  some  benefit  from  the  consideration, 
whether  past  or  present,  their  promise  is  presumed  to  be 
joint  and  several;^  and  that  where  a  promise  is  made  in 
the  singular  number,  but  is  executed  by  several  persons, 
it  is  presumed  to  be  joint  and  several.- 

§  635.    Joinder   of   defendants — In    general.    In 

regard  to  the  joinder  of  parties  defendant,  the  California 
code  provides  that  any  person  may  be  made  a  defendant 
who  has  or  claims  an  interest  in  the  controversy  adverse 
to  the  plaintiff,  or  who  is  a  necessary  party  to  a  complete 
determination  or  settlement  of  the  question  involved 
therein.^  Substantially  the  same  provision  is  found  in  the 
procedural  codes  of  Colorado,-  Hawaii,^  Idaho,^  lowa,"^ 
Kansas,*'  Missouri,'^  Nebraska,^  Nevada,^  New  Mexico,^*^ 

1  1  Chitty's  Pleading  (16th  Am.  parties  of  the  first  or  second  part 

ed.),  p.  41.  to  covenants,  agreements  and  con- 

1  Kerr's    Cyc.    Cal.    Civ.    Code,  tracts,  in  suing  for  non-payment, 

§  1659.  non-acceptance,  or  non-fulfillment 

1^  Id.,  §  1660.  thereof,  but  it  shall  in  no  case  be 

1  Kerr's    Cyc.    Cal.    Code    C  i  v.  necessary    to    serve    all    the   joint 

Proc,  §  379.  parties  sued  with  process. 

'^  Colo.  C.  C.  P.,  §  11.  4  Idaho  Code,  §  4102. 

3  Hawaii,    §  1741.     It  s  h  a  1 1   be  ^  j^^^  ^ode,  §  346. 

ne<:essary  to  join  as  defendants  in  ^    ^    x,     .,  or 

.    .,       ,.  ,,  XI.     •       ..       J  ^  Kan.   C.  C.   P.,   g  o5. 

a  civil  action,  all  the  joint  and  sev- 

f  ral,  or  joint  makers  of  promissory  '''  Mo.,  §  543. 

r.otes.  or  drawers  of  drafts,  bills  «  Neb.,  §  6668. 

of    exchange,    or   orders,    or   joint  9  Nev.,  §  3108. 

and    several    obligors,    lessees,    or  lo  N.  M.,  §  2685,  subd.  5. 

858 


ch.  v.]  JOINDER  OF  DEPENDANTS.  §  636 

North  Dakota,^^  Oklahoma/^  Oregon/'  South  Dakota,^^ 
Washington,^^  Wisconsin/^  and  Wyoming.^'  Under  this 
provision  all  persons  having  a  joint  interest  in  the 
subject-matter  of  the  action,  or  jointly  liable  therein, 
or  who  would  be  affected  by  the  granting  or  withholding 
of  the  relief  demanded  therein,  should  be  made  parties 
defendant  ;^'^  but  where  persons  are  not  thus  interested, 
or  are  not  thus  liable  or  affected,  they  are  not  proper 
defendants,^'-^  because  they  have  no  interests  or  rights  to 
be  affected  by  any  judgment  that  may  be  recovered.-'^ 

§  636. Persons  who  may  be  joined.  All  per- 
sons who  have  or  claim  an  interest  in  the  subject-matter 
of  the  action  may  be  joined  as  defendants.^  Thus,  in  an 
action  affecting  real  estate,  it  is  proper  to  join  as  defen- 
dants all  who  claim  to  have  been  in  possession,  because, 
if  the  proof  substantiates  that  claim,  it  is  proper  for  the 
court,  by  its  judgment,  to  conclude  them;-  and  in  an 
action  to  annul  a  transaction  by  which  the  title  to  land 
was  fraudulently  acquired,  not  only  all  persons  partici- 
pating in  the  fraud,  but  all  who  claim  an  interest  in  the 
land  by  means  of  or  through  the  transaction,  are  properly 
joined  as  defendants.^  In  those  cases  in  which  the  whole 
transaction  which  is  the  subject-matter  of  the  action 
grows  out  of  a  state  of  facts  in  which  two  or  more  persons 
are  directly  interested,  and  relates  to  a  sum  of  money 

11  N.  D.,  §  6816.  Action  to  recover  land  dedicated 

12  Okla.,  §  4234.  to  a  city,  the  heirs  of  the  dedicator, 

13  Ore     §  394  ^°^   being   in    present   possession, 
i4<?   n   r    r    P  s  ss                         are    not   necessary    parties.— 

b.  D.  L.  C.  P.,  §  88.  Eureka,  City  of,  v.   Fay.  107  Cal. 

15  Wash.,  §  189.  166,  40  Pac.  235. 

16  Wis.,  §  2603.  1  See,  ante.  §  365. 

iTWyo.,  §3480.  Brady  v.  Linehan,  5  Idaho  732. 

IS  See,  post,  §§  637-639.  51  Pac.  761;  Raskins  v.  McGirl,  12 

10  Sterling  v.  Hanson,  1  Cal.  478.  Mont.  563,  31  Pac.  544. 

See   Kennedy  v.   Merickel,   8   Cal.  ^  Garroch  v.  Stanner,  1  Cal.  Un- 

App.   378,  97  Pac.   81.  rep.  490. 

20  Smith  V.  Lawrence,  38  Cal.  42,  a  Raynor  v.  Mintzer,  67  Cal.  159, 

99  Am.  Dec.  344.  7  Pac.  431, 

859 


§636  CODE  PLEADING   AND   PRACTICE.  [Pt.  IH, 

claimed  by  both,  they  may  be  joined  as  defendants;^ 
but  if  one  or  more  of  the  parties,  while  connected  with 
the  main  transaction,  have  no  interest  in  the  money  which 
is  the  subject  of  the  action,  such  person  or  persons  are 
neither  necessary  nor  proper  parties  defendant.  Thus, 
where  A  deposits  with  a  bank  a  specific  sum  of  money  to 
be  paid  to  B,  upon  B's  tendering  and  delivering  a  deed 
to  specified  property  within  a  given  time,  on  B's  failure 
to  deliver  the  deed,  as  agreed,  he  has  no  interest  in  or 
claim  to  the  money  deposited,  and  for  that  reason  is 
neither  a  necessary  nor  a  proper  party  in  an  action  by  A 
against  the  bank  to  recover  the  deposit.^  Likewise  a  bank, 
which  is  made  the  holder  of  papers  placed  in  escrow,  to  be 
delivered  as  directed  on  the  performance  of  certain  con- 
ditions in  a  contract  for  the  sale  of  specified  real  estate, 
otherwise  to  return  them  to,  or  surrender  them  to,  the 
depositor  thereof,  is  not  a  necessary  or  proper  party  to 
an  action  by  the  purchaser  against  the  seller  and  de- 
positor of  the  escrow  on  the  ground  of  fraud  in  the 
transaction,  and  asking  that  the  title  be  vested  in  the 
purchasers,  because  of  such  fraud,  for  the  sums  of  money 
already  paid  on  account  of  the  contract.*'  And  where  a 
debtor  executes  two  instruments,  one  in  the  form  of  an 
order  on  A  to  pay  to  B  a  specified  amount  of  money  out 
of  funds  he  may  receive  on  the  debtor's  account  from 
a  specified  source,  and  the  second  a  promissory  note, 
negotiable  in  form,  to  B,  agreeing  to  pay  the  money  on  a 
specified  date,  in  case  the  same  shall  not  have  been  paid 
by  A  on  that  date ;  in  a  suit  by  B  on  such  note,  A  is  neither 
a  necessary  nor  a  proper  party  defendant,'  In  other 
words,  persons  whose  sole  connection  with  the  subject- 
matter  of  the  action  is  as  agents  for  the  person  really 

■i  Pfister   V.   Wade,    69    Cal.    133,  6  Bartley  v.  Fraser,  16  Cal.  App. 

136-7,  10  Pac.  369.  560,  117  Pac.  683. 

5  TJlrech   v.    Santa   Rosa   Nat.  "  Yellow  Jacket  G  o  1  d  &  Silver 

Bank,  4  Cal.  Unrep.   741,   37   Pac.      Min.  Cor  v.  Holbrook,  24  Cal.  App. 
500.  687,   142  Pac.  128. 

860 


oh.  v.] 


JOINDER — WHO  MAY  BE  JOINED. 


^63G 


interested,  are  not  necessary  parties  where  no  relief  is 
asked  for  or  can  be  granted  against  them  personally.' 
To  be  properly  made  a  party,  the  person  must  have  a 
claim  or  some  interest  in  the  controversy ;°  and  the  word 
"controversy,"  as  used  in  the  California  statute,  signifies 
the  claim  for  relief  made  by  the  plaintiff  against  the 
defendants  and  set  up  in  his  complaint.^"  Persons  liable 
on  the  same  obligation  ;^^  representatives  of  a  deceased 
party  ;^2  tort-feasors,^^  and  the  like,  are  all  proper  parties 
defendant.  Where  persons  are  severally  liable  upon  the 
contract  which  is  the  subject-matter  of  the  action,  it  is 
optional  with  the  plaintiff  to  make  more  than  one  defen- 
dants or  to  omit  all  but  one.  Thus  where  two  insurance 
companies  join  in  issuing  a  policy  of  insurance  against 
loss  by  fire,  in  which  the  several  liability  of  each  is  dis- 
tinctly set  forth,  in  a  suit  on  the  policy  either  may  be 
sued  alone  or  they  be  both  made  defendants.^* 


sGold  Cross  Min.  &  Mill.  Co. 
V.  Free  Gold  Min.  Co.,  83  C.  C.  A. 
385,  154  Fed.  441. 

Attorneys  for  executor  in  actions 
on  fire  insurance  policies  in  favor 
of  decedent  mortgagor  and  a  mort- 
gagee, to  whom  the  policies  were 
payable,  in  which  actions  judg- 
ments were  obtained  by  agree- 
ment, drafts  in  payment  of  said 
judgments  being  turned  over  to 
the  attorneys,  and  they  were  about 
to  pay  the  money  to  the  executor 
and  others  who  were  not  entitled, 
instead  of  to  the  mortgagee;  the 
attorneys  were  held  to  be  proper 
parties  defendant  in  an  action  by 
the  mortgagee  to  compel  payment 
of  the  money  to  him. — Burrows  v. 
McCalley,  17  Wash.  269,  49  Pac. 
508. 

9  See,  ante,  §  635. 

10  Gardner  v.  Samuels,  116  Cal. 


84,   58  Am.  St.   Rep.   185,  47  Pac. 
935. 

A  "controversy"  signifies  the 
claims  or  contentions  of  litigants 
before  a  court  for  adjudication;  a 
dispute,  or  a  disputed  question,  be- 
tween two  or  more  persons  in  a 
pending  litigation. — See  Barber  v. 
Kennedy,  IS  Minn.  216;  State  ex 
rel.  Hamilton  v.  Guinotte,  156  Mo. 
513,  519,  57  S.  W.  281;  Smith  v. 
Adams,  130  U.  S.  173,  32  L.  Ed. 
895,  9  Sup.  Ct.  Rep.  566;  Inter- 
state Commerce  Commission  v. 
Brimson,  154  U.  S.  447,  38  L.  Ed. 
1047,  14  Sup.  Ct.  Rep.  1125. 

11  See,  post,  §  686. 

12  See,  post,  §  654. 

13  See,  post,  §§  674,  701. 

14  Bernero  v.  South  British  & 
National  Ins.  Co.,  65  Cal.  386,  4 
Pac.  382. 


8G1 


§§637,638  code  pleading  and  puactice.  [pt.ili, 

§  637. Persons  who  must  be  joined — In  gen- 
eral. All  persons  who  are  the  ones  vitally  interested  in 
the  subject-matter  of  the  action  or  who  will  be  directly 
affected  by  granting  the  relief  demanded,  must  be  made 
parties  defendant  to  the  action.^  Thus,  all  parties  jointly 
liable,  whether  in  an  action  in  contract,^  or  an  action  in 
tort,^  must  be  joined  as  defendants ;  but  persons  not  par- 
ties to  the  contract  sued  on  need  not  be  made  parties 
defendant.^  In  an  action  to  subject  a  pledge  to  the  pay- 
ment of  a  debt  of  the  pledgor,  such  pledgor  is  an  indis- 
pensable defendant.^  In  an  action  in  equity  charging  that 
A  was  indebted  to  plaintiff,  and  had  conveyed  his  prop- 
erty to  B  to  be  disposed  of  for  his  benefit,  and  had  drawn 
an  order  in  favor  of  plaintiff  on  B,  who  had  accepted  it, 
and  further  charging  that  B  had  subsequently  conveyed 
a  portion  of  the  property  to  A  without  consideration,  and 
praying  that  B  be  compelled  to  execute  the  trust  in  his 
favor,  A  being  charged  with  fraud  was  not  only  a  proper 
but  a  necessary  party.*^ 

(^  638^ Interest  in  or  title  to  property. 

All  persons  having  an  interest  in  or  title  to  property 
which  is  the  subject-matter  of  an  action  at  law  or  a  suit 
in  equity,  are  not  only  proper  but  necessary  parties. 
Thus,  the  children,  after  the  death  of  the  mother,  being 
tenants  in  common^  w4th  the  father  in  the  community 
property,  are  necessary  parties  defendant  in  an  action  to 
foreclose  a  mortgage  executed  by  the  father  on  such  com- 
munity property  to  secure  a  community  debt.^  But  per- 
sons who  have  ceased  to  have  any  interest  in  or  title  to 
the  property  are  not  necessary  or  proper  parties.   Thus, 

1  Shakespear   v.    Smith,   77    Cal.  hill  v.  Lowe,  10  Utah  419,  37  Pac. 

638,   641,   11   Am.   St.   Rep.   327,   20  589. 

Pac.  294.  ^  Burgoj-ne  v.  Perry,  3   Cal.   50. 

L'  Harrison  v.  McCormick,  69  Cal.  6  Lucas  v.  Payne,  7  Cal.  92. 

616,  620,  11  Pac.  456;  Goff  v.  Ladd,  i  As  to  tenants  in  common,  see, 

161  Cal.  257,  118  Pac.  792.  post,  §  700. 

't  See,  post,  §  674.  -  Johnston    v.     San     Francisco 

4  See,   post,   §§  635,   647;    White-  Sav.  Union,  63  Cal.  554. 

862 


Ch.  v.]  PERSONS  WHO  MUST  BE  JOINED.  §  639 

in  an  action  by  the  equitable  owner  of  real  estate  to 
recover  from  a  mortgage  company  the  legal  title  and  for 
an  accounting,  which  company  has  procured  from  the 
mortgagors  the  legal  title  for  plaintiff,  the  mortgagors 
are  not  necessary  parties  defendant;^  and  in  an  action 
by  a  city  to  recover  certain  lands  as  having  been  dedi- 
cated to  it,  a  grantee  of  the  administrator  of  the  dedica- 
tor, not  being  in  possession,  is  not  a  necessary  defendant* 

§  639. Persons  necessary  to  complete 

DETERMINATION.  All  the  persons  necessary  to  a  complete 
determination  of  the  controversy  in  an  action  must  be 
before  the  court;  and  where  they  were  not  originally 
made  parties  the  trial  court  is  required  to  order  them  to 
be  brought  in,  and  to  that  end  an  amended  or  a  supple- 
mental complaint,  or  a  cross-complaint,  may  be  filed,  and 
summons  thereon  issued  and  served;^  this  right  may  be 
exercised  at  any  time  when  it  finds  it  necessary  to  have 
new  parties  brought  in  before  it  can  make  a  complete 
determination  of  the  controversy  before  it-  Thus,  in 
those  cases  in  which  the  liability  of  the  defendant  depends 
upon  the  settlement  of  accounts  between  partners,  the 
partners  are  necessary  defendants.^  In  an  action  seeking 
the  specific  performance  of  a  contract  to  convey  a  mining 
claim  and  to  pay  one-eighth  of  the  net  price  thereof, 
alleging  a  sale  and  conveyance  to  a  corporation  and  claim- 
ing a  one-eighth  interest  in  the  corporate  stock  of  the 
corporation  as  the  proceeds  of  the  sale,  and  charging  the 
corporation  and  stockholders  as  constructive  trustees  by 
reason  of  their  having  purchased  with  full  knowledge  of 
the  plaintiff's  rights,  such  corporation   and  the  stock- 

3  Ross  V.  Noble.  6  Kan.  App.  ?,Q5,      Proc,   2d  ed.,   §  389;    Consolidated 
51  Pac.  792.  Siipp.   190G-1913.   p.   1420. 

4  Eureka,    City   of,    v.    Fay,    107  -^  See,  post,  §§  647-650. 

Cal.  166,  40  Pac.  235.  :i  Young  v.  Hogland,  52  Cal.  466. 

1  Kerr's    Cyc.    Cal.    Code    C  i  v. 

863 


§  640  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

holders  thereof  are  necessary  defendants.''  In  an  action 
by  the  assignee  of  a  factor's  claim  for  breach  of  contract, 
the  factors  are  necessary  parties  defendant,  being  neces- 
sary to  a  complete  determination  of  the  controversy.-^ 
In  a  recent  case  in  which  a  corporation  assigned  certain 
oil  leases  to  the  defendant,  and  subsequently  thereto, 
with  consent  of  the  creditors,  continued  the  leases  in 
force,  under  an  agreement  appointing  a  bank  a  trustee 
for  the  parties,  to  receive  and  disburse  the  receipts  from 
the  operation  of  the  leases  and  oil-wells  by  the  defendant, 
until  such  time  as  the  creditors  should  all  be  fully  paid ; 
in  an  action  by  the  corporation,  brought  before  the  cred- 
itors had  been  fully  paid,  to  recover  from  defendant 
assignee  the  possession  of  the  property,  the  court  held 
that  the  bank,  as  trustee  and  the  creditors  whose  claims 
were  to  be  paid,  was  a  necessary  party.*' 

^  540.    Grounds  for  omitting  or  dispensing  with 

PARTIES  DEFENDANT.  The  right  to,  and  the  grounds  for, 
striking  out  parties  defendant  to  an  action  will  be  dis- 
cussed in  future  sections.^  There  is  an  early  case  in 
California  to  the  effect  that  where  all  the  parties  defen- 
dant named  in  an  action  on  a  several  contract  have  not 
been  served  with  process,  the  plaintiff  may  elect  to  pro- 
ceed against  those  who  have  been  served  ;2  but  should 
he  so  elect,  any  judgment  that  he  may  recover  against 
the  parties  served  will  not  be  in  any  way  binding  on  the 
parties  not  served,^  and  if  the  defendants  sued  are 
coparceners,^  any  judgment  recovered  against  the  co- 
partnership will  be  void,  in  so  far  as  the  interest  of  the 

4  Kinard  v.  Jordan,  10  Cal.  App.  3  Id.;    East  Baltimore  Lumber 
219,  101  Pac.  696.  Co.    v.    K'    Nessett    Isreal    Aushe 

5  McKenzie  v.  Hodgkin,  126  Cal.  g'    Pard    Congregation,    100    Md. 
591,  77  Am.  St.  Rep.  209,  59  Pac.  ggg^  62  Atl.  575;   Horner  v.  Popp- 

36.  lein,  112  Md.  591,  77  Atl.  254. 

c  Harris  v.  Tarr,  251  Fed.  570. 

1  See,  post,  §§691,  692.  ^  ^'^■ 

2lngraham    v.   Geldemeester,    2  As  to  coparceners,  see,  post, 

Cal.  88.  §  652. 

864 


Ch.  v.]  OMITTING  PARTIES — GROUNDS  FOR.  §  640 

partner  or  partners  not  served  is  concerned;^  but  the 
debt  of  the  partner  or  partners  not  served  will  not  be 
merged  in  the  judgment.*' 

All  persons  necessary  or  proper  parties  not  made  par- 
ties defendant  in  the  original  proceedings  on  a  severaF 
or  on  a  joint  and  several  obligation,  the  complaint,  to  be 
sufficient  and  not  vulnerable  to  a  demurrer  for  non- 
joinder of  parties  defendant,^  must  contain  an  averment 
of  a  sufficient  excuse  for  such  failure  to  join  persons  who 
are,  prima  facie,  necessary  parties  to  the  action  or  suit.^ 
Thus,  in  an  action  against  copartners  or  on  a  corporation 
obligation  facts  must  be  alleged  showing  that  the  per- 
sons omitted  have  been  absolved  from  any  legal  obliga- 
tion or  liability;^"  joint  obligation  declared  on,  omitted 
parties  must  be  averred  to  be  dead,^^  or  alleged  to  be 
absent  from  the  state  and  beyond  the  jurisdiction  of  the 
court.^-  The  reason  for  this  rule  is  that  where  the  defen- 
dant can  not  give  the  plaintiff  the  means  of  bringing  all 

•">  Duryea  v.  Hale,  31  Conn.  217.  Greenl.)  441;  Hanley  v.  Donaghue, 

See  authorities  collected  and  dis-  59  Md.  239,  43  Am.  Rep.  554;  Smith 

cussed  in  note  to  44  Am.  Dec.  570-  v.   Miller,   49   N.   J.   L.  521;    Hyde 

574;  61  Am.  Dec.  770;  81  Am.  Dec.  v.    Van    Valkenburgh,    1    Daly 

444;   92  Am.  Dec.  592;   13  Am.  St.  (N.   Y.)    416;    Gage  v.    Sartor,   1 

Rep.  492.  Treadw.    (S.    C.)    247;    McCall    v. 

Compare:    Harker   v.   Brink,   24  Price,  1  McC.  L.  (S.  C.)  82;  Noyes 

N.  J.  L.  (4  Zab.)   333.  v.    Barnard,    11    C.    C.    A.    424,    15 

6  Wood  V.  Watkinson,  17  Conn.  U.  S.  App.  527,  63  Fed.  782. 

500,  44  Am.  Dec.  562.  lo  Hyde  v.  Van  Valkenburgh,  1 

7  Joint  and   several   obligation,      Daly  (N.  Y.)  416. 

the    rule   is   different,   because   in  ii  Harwood  v.  Roberts,  5  Me.  (5 

such  a  case  the  service  of  one  is  Greenl.)  441;  Hanley  v.  Donoghue, 

regarded  as  equivalent  to  a  service  59    Md.    239,    43    Am.    Rep.    554; 

of  all,  and  any  judgment  recover-  Smith  v.  Miller,  49  N.  J.  L.  521. 
able    will    bind    all.— W  r  i  g  h  t   v.  ii:  Tally  v.  Ganahl,  151  Cal.  418, 

Hicks,  1  Brayt.    (Vt.)    22.  90  Pac.  1049;    Cox  v.  Maddux,  72 

But  this  doctrine  does  not  now  Ind.  206;  Merriraan  v.  Barker,  121 

prevail.     See   authorities  cited  in  Ind.  80,  22  N.  E.  992;    Dennett  v. 

footnote  12,  this  section.  Chick,  2  Me.  191,  11  Am.  Dec.  59; 

s  As  to   non-joinder  of   defen-  Tappan    v.    Bruen,    5    Mass.    193; 

dants,  see,  post,  §§  683-685.  Noyes  v.  Barnard,  11  C.  C.  A.  424, 

0  Harwood  v.  Roberts,  5  Me.   (5  15  U.  S.  App.  527,  63  Fed.  782. 

1  Code  PI.  and  Pr.— 55  gg5 


§641 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  Ill, 


the  parties  before  tlae  court,  he  can  not  be  heard  to  object 
on  the  ground  of  non-joinder.^^ 


§641. 


Making  defendants  persons  refusing  to 


JOIN  as  plaintiffs.  The  California  procedural  code  pro- 
vides that  if  the  consent  of  one  who  should  have  been 
joined  as  a  plaintiff  in  the  action  can  not  be  obtained,  he 
may  be  made  a  defendant,  the  reason  therefor  being 
stated  in  the  complaint;^  and  a  similar  provision  is  found 
in  other  procedural  codes.  This  provision  of  the  code 
applies,  alike,  to  actions  at  law-  and  suits  in  equity.^ 

A  corporation,  having,  by  virtue  of  its  contract  with 
the  plaintiff's  testator  and  ancestor,  an  interest  in  the 
subject-matter  of  the  suit,  and  a  right  to  take  part  in  the 
litigation  to  obtain  a  restitution  of  an  alleged  lost  deed, 
the  plaintiff  is  justified,  under  the  rules  of  good  pleading, 


13  Inbusch  V.  Farwell,  66  U.  S. 
(1  Black.)  566,  571,  17  L.  Ed.  188. 
See  Barney  v.  Baltimore,  City  of, 
73  U.  S.  (6  Wall.)  280,  18  L.  Ed. 
825;  Noyes  v.  Barnard,  11  C.  C.  A. 
424,  15  U.  S.  App.  527,  63  Fed.  782; 
.loll  V.  Howe,  4  C.  B.  254,  56  Eng. 
C.  L.   254. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  382.  See:  ARK.— Ingra- 
ham  Lumber  Co.  v.  IngersoU,  93 
Ark.  447,  20  Ann  Cas.  1002,  125 
S.  W.  139.  COL  O.— First  Nat. 
Bank  v.  Hummel,  14  Colo.  259,  20 
Am.  St.  Rep.  257,  8  L.  R.  A.  788,  23 
Pac.  986.  IND. —  Johnson  v. 
Gwinn,  100  Ind.  466.  KAN.— Grain 
Dealers'  Mut.  Fire  Ins.  Co.  v.  Mis- 
souri, K.  &  T.  R.  Co.,  98  Kan.  344, 
157  Pac.  1187.  KY.— Paducah,  T.  & 
A.  R.  Co.  V.  Dipple,  16  Ky.  L.  Rep. 
62.  NEB. —  Union  Pac.  R.  Co.  v. 
Vincent,  58  Neb.  171,  78  N.  W.  457. 
ORE. — Williams  v.  Pacific  Surety 
Co.,  66  Ore.  151,  127  Pac.  145. 
S.  D.— Jerome  v.  Rust,  23  S.  D.  409, 


122  N.  W.  344,  reversing  21  S.  D. 
191,  110  N.  W.  780.  WYO.— Little- 
ton V.  Burgess,  16  Wyo.  58,  16 
L.  R.  A.  (N.  S.)  49,  91  Pac.  832. 

Refusal  to  join  need  not  be 
stated  in  the  complaint  in  Ne- 
braska.— Union  Pac.  R.  Co.  v.  Vin- 
cent, 58  Neb.  171,  78  N.  W.  457. 

Rule  does  not  apply  when  the 
plaintiff  may  sue  for  and  recover 
his  interest  independent  of  the 
party  refusing  to  join;  as  in  eject- 
ment by  one  claiming  as  joint 
owner  of  an  undivided  interest. — 
See,  post,  §  655. 

2  In  Oregon,  under  provision  of 
§  381,  the  rule  does  not  apply  to 
actions  at  law. — State  Ins.  Co.  v. 
Oregon  R.  &  Nav.  Co.,  20  Ore.  563, 
26  Pac.  838.  But  see  Williams  v. 
Pacific  Surety  Co.,  66  Ore.  151,  127 
Pac.  145. 

3  Andrews  v.  Mokelumne  Hill 
Co.,  7  Cal.  330.  See  Jobst  v.  Hay- 
den,  84  Neb.  735,  50  L.  R.  A.  (N.  S.) 
501,  121  N.  W.  957. 


866 


Ch.  v.]  ANNULLING  PATENT — ASSESSORS.  §§  642.  643 

in  making  such  corporation  a  party  defendant  to  his  suit.* 
And  where  a  foreign  corporation  has  the  primary  right  to 
prosecute  an  action,  and  fails  to  do  so,  such  corporation 
is  a  necessary  party  defendant  in  an  action  brouglit  by  a 
stockhokler  complaining  of  a  wrong  to  said  corporation, 
and,  through  it,  to  the  stockholders.  Where  a  complaint 
is  filed,  therefore,  in  which  such  corporation  is  not  made 
a  party,  it  is  demurrable  upon  ground  of  defect  of  par- 
ties.^ 

§  642.  Annulling  patent  to  land.  In  an  action  to  set 
aside  a  patent  to  land,  the  patentee  is  a  necessary  party 
defendant.  His  rights  can  not  be  determined  or  impaired 
in  any  side-suit  between  third  parties. ^ 

<§  643.  Assessors — In  actions  against.  Assessors  of 
property  for  purposes  of  taxation  under  the  laws,  in  the 
performance  of  their  duties  as  such,  act  in  a  judicial  or 
quasi-judicial  capacity,  and  are  not  liable  in  a  civil  action 
for  damages  for  mere  errors  or  mistakes  of  judgment  in 
the  performance  of  their  official  duties  ;i  but  they  are 
liable  for  assessing  an  illegal  tax  which  the  party  injured 
is  compelled  to  pay,^— as  well  as  for  fraud  and  malice  in 

See  20  R.  C.  L.  672,  §12.  ertson,   16  Utah  330,   52   Pac.    1. 

4  Stevens  v.  Fitzpatrick,  218  Mo.  FED. — Bailey  v.  Berkey,  81  Fed 
708,  118  S.  W.  51,  55.  737. 

5  Elmergreen  v.  W  e  i  m  e  r,  138  2  See:  CONN.  —  Williams  v. 
Wis.  112,  119  N.  W.  836,  838.  Brace,  5  Conn.  190;   Thames  Mfg.' 

1  Boggs  V.  Merced  Min.  Co.,  14  Co.  v.  Lathrop,  7  Conn.  550.    ME. 

Cal.  279;  Yount  v.  Howell,  14  Cal.  — Mosher   v.    Robie,    11    Me.    135; 

405,  469;    Pioche  v.   Paul,   22   Cal.  Herriman  v.  Stowers,  43  Me.  497. 

ni;    Turner  v.   Donnelly,   70   Cal.  MASS.— Stetson    v.    Kempton.    13 

597,    604,    12    Pac.    469;    Miller   v.  Mass.  272,  7  Am.   Dec.  145;    Gage 

Grunsky,  141  Cal.  441,  66  Pac.  858,  v.  Currier,  21  Mass.  (4  Pick.)  399; 

75  Pac.  48.  Inglee   v.    Bosworth,    22    Mass.    (5 

1  IOWA— Stevens  v.  Carroll,  130  Pick.)  498,  16  Am.  Dec.  419;  Free- 
Iowa  463,  104  N.  W.  433.  ME.—  man  v.  Kenney,  32  Mass.  (15  Pick.) 
Rowe  V.  Friend,  90  Me.  241,  38  Atl.  44;  Little  v.  Merrill,  27  Mass.  (10 
95.  MICH.— Mead  v.  Haines,  81  Pic  k.)  543.  N.  Y.—  Palmer  v. 
Mich.  261,  45  N.  W.  836.  NEV.—  Lawrence,  6  Lans.  (N.  Y.)  282. 
Ford  v.  McGregor,  20  Nev.  446,  23  UTAH— Taylor  v.  Robertson,  16 
Pac.  508.     UTAH— Taylor  v.  Rob-  ITtah  330,  52  Pac.  10.    VT.— Fuller 

867 


§644 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  Ill, 


fixing  a  false  and  exorbitant  valuation,^— even  though 
they  act  judicially  or  quasi-judicially  and  in  good  faith.-* 
Where  assessors  are  liable  they  may  be  sued  jointly  or 
severally,  in  Massachusetts,  and  perhaps  elsewhere,  for 
illegally  assessing  and  collecting  a  tax.^ 

<^  644.  Associations  or  unincorporated  societies.  We 
have  already  seen  that  where  the  subject-matter  in  con- 
troversy is  one  of  a  common  or  general  interest  of  many 
persons,  or  the  parties  are  numerous  and  it  is  incon- 
venient or  impracticable  to  bring  them  all  before  the 
court,  one  or  more  may  sue  on  behalf  of  themselves  and 
all  the  others.^  This  doctrine  of  virtual  representation 
applies  to  defendants  equally  with  plaintiffs,  under  the 
special  provision  of  the  California  code^  and  other  pro- 
cedural codes.  Thus,  a  portion  of  the  members  of  an 
unincorporated  religious  society,  or  other  unincorporated 
society,  or  association,  or  club,^  may  be  sued  for  all,  where 


V.  Gould,  20  Vt.  643.  FED.— Thurs- 
ton V.  Martin,  5  Mas.  497,  Fed  Cas. 
No.  14018. 

See,  also,  notes  16  Am.  Dec.  422; 
23  Am.  Dec.  521;  24  Am.  Dec.  121; 
40  Am.  Dec.  156. 

Adding  collector's  fees  to  sum 
legally  assessed. — Mosher  v.  Robie, 
11  Me.  135. 

Duty  to  keep  within  authority 
strictly. —  (dis.  op.)  Sharp  v.  Engle, 
3  Okla.  10,  41  Pac.  346. 

Poll-tax  assessed  upon  a  person 
in  a  town  in  which  he  is  not  a 
resident. — Freeman  v.  Kenney,  32 
Mass.  (15  Pick.)  44;  Dickinson  v. 
Billings,  70  Mass.  (4  Gray)   44. 

Stock  assessed  in  one  county, 
and  certificate  of  assessment  de- 
livered to  assessor  in  county  into 
which  stock  driven  for  pasture; 
assessor  of  latter  county  liable  for 
assessing  a  second  time. — Taylor 
V.  Robertson,  16  Utah  330,  52  Pac. 
1. 


3  Mass  V.  Cummings,  44  Mich. 
359,  6  N.  W.  843. 

4  New  York  Milk  Products  Co.  v. 
Damon,  172  N.  Y.  661,  65  N.  E. 
1119,  affirming  57  App.  Div.  261,  68 
N.   Y.   Supp.   183. 

5  Withington  v.  Eveleth,  24  Mass. 
(7  Pick.)    106. 

See,  post,  §  694. 

1  See,  ante,  §  593. 

2  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  382. 

3  Unincorporated  societies,  in  the 
absence  of  statutory  provisions, 
can  not  sue  or  be  sued  in  their 
association  name;  but  must  sue 
and  be  sued  in  the  names  of  the 
individuals  composing  the  same, 
however  numerous  they  may  be; 
but  the  doctrine  of  virtual  repre- 
sentation allows  some  to  sue  for 
all  (see,  ante,  §  593),  and  some  to 
defend  for  all.  Such  societies,  in 
the  absence  of  statutes  recogniz- 
ing them,  have  no  legal  entity  dis- 


868 


ell.  V. 


UNINCORPORATED  SOCIETIES,  ETC. 


§ti44 


it  is  alleged  in  the  complaint  that  all  the  members  of  such 
society,  or  association,  or  club,  have  a  common  and  per- 
sonal interest  in  the  subject-matter  of  the  action  set 
forth,  and  that  they  are  so  numerous  as  to  render  it 
difficult  or  inconvenient  to  name  them  all,*  it  being 
sufficient,  under  the  rule  of  virtual  representation,  if  it  is 
shown  to  be  difficult  or  inconvenient  to  join  all,"^  although 
the  impossibility  of  joining  all  is  narrowly  contended 
for.^  In  such  an  action  the  proper  method  is  to  select  as 
defendants  persons  who  are,  or  may  properly  be  said  to 
be,  proper  representatives  of  the  whole  class  of  defen- 
dants, and  who  are  members  of  the  society,  or  organiza- 
tion, or  club,  describing  the  class  to  which  they  belong 
and  stating  that  the  parties  are  numerous.'^ 


tinct  from  that  of  their  members. 
—Nightingale  v.  Barney,  4  G. 
Greene  (Iowa)  106;  Steamboat 
Pembinaw  v.  Wilson,  11  Iowa  497; 
St.  Paul  Typothetae  v.  St.  Paul 
Bookbinders'  Union,  94  Minn.  351, 
''.  Ann.  Cas.  695,  102  N.  W.  725; 
Mexican  Mill  v.  Yellow  Jacket  Sil- 
ver Min.  Co.,  4  Nev.  40,  97  Am. 
Dec.  510;  Pearson  v.  Anderburg, 
28  Utah  495,  80  Pac.  407. 

Unincorporated  organizations  or 
voluntary  associations  are  in  some 
cases  regarded  as  copartnerships, 
and  governed  by  the  general  laws 
apvilicable  to  that  relation.  The 
position  such  organizations  occupy 
under  the  law  is  not  fully  agreed 
upon  by  the  courts.  A  distinction 
is  made  between  those  organized, 
first,  for  the  purpose  of  conducting 
some  business  enterprise,  and, 
second,  those  whose  purpose  is 
wholly  the  promotion  of  the  in- 
terests and  welfare  of  their  mem- 
bers, unaccompanied  by  any  busi- 
ness functions.  As  to  the  latter 
class,  it  would  seem  that  the  law 
of  principal  and  agent  should  ap- 


ply: and  a  union  composed  of 
persons,  firms,  and  corporations 
engaged  in  publishing  and  book- 
binding, and  employing  printers 
necessary  to  carry  on  and  conduct 
their  several  enterprises,  has  been 
held  to  be  such  a  class. — St.  Paul 
Typothetae  v.  St.  Paul  Bookbind- 
ers' Union,  94  Minn.  351,  3  Ann. 
Cas.  695,  102  N.  W.  725. 

i  Wheelock  v.  First  Presbyterian 
Church,  119  Cal.  477,  51  Pac.  841; 
Pickett  V.  Walsh,  192  Mass.  572, 
116  Am.  St.  Rep.  272,  7  Ann.  Cas. 
638,  6  L.  R.  A.  (N.  S.)  1067:  Rey- 
nolds V.  Davis,  198  Mass.  294,  17 
L.  R.  A.  (N.  S.)  162,  84  X.  E.  457; 
Mannix  v.  Purcell,  46  Ohio  St.  102, 
15  Am.  St.  Rep.  562,  2  L.  R.  A. 
753,   19   N.   E.   572. 

5  Wendell  v.  Van  Rensselaer,  1 
Johns.  Ch.  (N.  Y.)  344;  Nashville 
&  D.  R.  Co.  V.  Orr,  85  U.  S.  (18 
Wall.)   471,  21   L.  Ed.  810. 

i>  See  note  Ann.  Cas.  1913C,  654. 

"  Reynolds  v.  Davis,  198  Mass. 
294,  17  L.  R.  A.  (N.  S.)  162,  84 
N.  E.  457. 

See  20  R.  C.  L.  672,  §  11. 


869 


§§  645,  646  CODE  pleading  and  practice.  [Pt.  Ill, 

Suit  by  associate  name  is  especially  provided  for  in 
California,  in  all  cases  in  which  two  or  more  persons  are 
associated  in  business,  and  transact  such  business,  under 
a  common  name,  whether  that  name  comprises  the  names 
of  the  persons  thus  associated  or  not;  the  summons  in 
such  cases  being  served  on  one  or  more  of  the  associates, 
and  the  judgment  in  the  action  being  binding  on  all  the 
joint  property  of  the  association,  and  also  upon  the  indi- 
vidual property  of  the  associates  served  with  process,  in 
the  same  manner  as  if  all  the  associates  had  been  named 
defendants,  sued  upon  their  joint  liability  and  all  served 
with  process.^ 

§  645.  Political  parties.  Under  the  laws  of  Cali- 
fornia a  political  party  may  maintain  or  defend  an  action 
in  the  party  name  for  the  enforcement  of  rights  conferred 
upon  the  party  in  its  representative  capacity.  Such  par- 
ties are  in  all  essential  respects  identical  with  corporate 
bodies  not  organized  for  profit.^ 

§  646.  Breach  or  contract.  The  general  rule  is  that 
in  an  action  for  the  breach  of  a  contract,  the  parties  to 
the  contract  and  those  who  have  an  interest  in  the  subject- 
matter  of  the  dispute  are  the  only  persons  who  are  re- 
quired to  be  made  parties  defendant;^  but  where  the 
obligation  of  the  parties  to  the  contract  is  joint  and  not 
several  they  must  all  be  joined  as  defendants,^  unless 
otherwise  provided  by  statute,^  or  unless  one  or  more  of 
the  parties  thus  bound  is  dead,  or  absent  from  the  state"* 

8  Kerr's    Cyc.    Cal.    Code    Civ.  (S.  C.)    162,  33  Am.  Dec.  98;    Gil- 

Proc,  2d  ed.,  §388;    Consolidated  man  v.  Rivers,  35  U.  S.   (10  Pet.) 

Supp.  1906-1913,  p.  1420.  298,  9  L.  Ed.  432;  Sissions  v.  John- 

ilndependence   League   v.    Tay-  son,  95  U.  S.  347,  24   L.   Ed.  596; 

lor,  154  Cal.  179,  97  Pac.  303.  Card  v.  Hines,  35  Fed.  598. 

1  Barber  v.   Cazalis,  30  Cal.   92.  3  Gossom    v.    Bradgett,    09    Ky. 

-'Kimmel  v.   S  h  u  1 1  z,  1  111.    (1  (Bush)  97,  99  Am.  Dec.  658;  Swain 

Brees.)    128;    Robertson  v.   Stnith,  v.  Kenny,  93  U.  S.  289,  23  L.  Ed. 

18  Johns.   (N.  Y.)   459,  9  Am.   Dec.  926. 
227;  Patton  v,  Magrath,  1  Rice  L.  4  See,  ante,  §  640. 

870 


ell.  v.]  BRINGING  IN  NEW  PARTIES.  §  647 

and  has  no  property  within  the  jurisdiction  of  the  court.^ 
Ill  a  suit  to  enforce  a  covenant  not  to  carry  on  a  certain 
trade,  the  original  covenantor  is  not  a  proper  party  if  he 
has  parted  mth  all  interest  and  is  not  in  fault.**  It  is  held 
in  Massachusetts  that  heirs  are  jointly  chargeable,  as 
assigns  on  a  covenant  of  their  ancestor  which  runs  with 
the  land  that  descends  to  them."^  So,  with  guardians  sev- 
erally appointed  for  different  heirs. *  In  New  York, 
persons  severally  liable  should  not  be  joined  in  the  same 
action  as  defendants.'* 

§  647.  Bringing  in  new  parties — In  general.  We  have 
already  seen  that  all  persons  who  are  necessary  to  the 
full  determination  of  the  controversy  before  the  court 
must  be  made  parties  defendant.^  In  those  cases  in  which 
a  complete  determination  of  the  controversy  can  not  be 
had,  the  trial  court  must  order  the  persons  whose  pres- 
ence is  necessary  to  such  complete  determination  to  be 
brought  in.-  This  provision  of  the  code  is  mandatory,  and 
can  not  be  waived  by  a  failure  to  object,  on  the  ground  of 
proper  and  necessary  parties,  either  by  answ^er  or  by 
demurrer.^  It  is  the  duty  of  the  court,  at  any  time  during 
the  progress  of  the  case,  whenever  it  appears  that  a  com- 
plete determination  of  the  controversy  can  not  be  had 
with  the  parties  before  the  court,  of  its  own  motion,  to 
order  the  necessary  parties  to  be  brought  in,  and  its 
failure  to  do  so  is  fatal  to  any  judgment  that  may  be 
rendered.^    This  right  on  the  part  of  the  court  may  be 

5  Dennett    v.    Chick,    2    Me.    (2  N.  Y.  Super.  Ct.  Rep.  (2  Duer)  626; 

Greenl.)   191,  11  Am.  Dec.  59.  Spencer  v.  Wheelock,  11  N.  Y.  Leg. 

See  20  R.  L.  C.  677,  §  16.  Obs.   329. 

0  Clements  v.  Welles,  L.  R.  1  Eq.  i  See,  ante,  §  639. 

200.  2  Kerr's    Cyc.    Cal.    Code    C  i  v. 

T  Morse  v.  Aldrich,  42  Mass.   (1  Proc,  2d  ed.,   §389;    Consolidated 

Mete.)  544.  Supp.  1906-1913,  p.  1420. 

■s  Donahue  v.  Emery,  50  Mass.  (9  3  Mitau  v.  Roddan,  149  Cal.  1,  6 

Mete.)   63.  L.   R.  A.   (N.  S.)    275,  84  Pac.   145. 

".' Phalen  v.  Dingee,  48  D.  Smith  4  Id.;    Grain   v.   Aldrich,  38   Cal. 

(N.  Y.)    379;    Le  Roy  v.   Shaw,   9  514,  99  Am.  Dec  423;  O'Connor  v. 

871 


§  647  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

exercised  at  any  time  during  the  course  of  the  trial  at 
which  time  the  necessity  becomes  apparent.^ 

This  provision  of  the  code  does  not  authorize  the  bring- 
ing of  an  action  in  the  first  instance  against  two  or  more 
persons  upon  the  theory*^  that  if  one  is  not  liable  upon  a  ' 
certain  state  of  facts  one  or  more  of  the  other  persons 
made  defendants  may  be;  and  that  the  court,  on  ascer- 
taining who  is  liable,  shall  render  judgment  against  such 
defendant  or  defendants.'^ 

The  bringing  in  of  new  parties  does  not  necessarily 
change  the  cause  of  action  or  destroy  the  right  thereto- 
fore conferred  upon  a  guardian  ad  litem  under  an  order 
authorizing  such  guardian  to  bring  his  action  against  one 
of  the  defendants  alone, -^  Thus  where  a  suit  was  brought 
in  the  name  of  an  incorporated  church,  and  the  amend- 
ment consisted  of  bringing  in  the  names  of  members  of 
the  church,  substituting  the  parties  having  the  legal  right 
to  sue  for  the  claim  for  which  the  action  was  brought, 
in  the  place  of  a  party  improperly  named  as  plaintiif, 
did  not  operate  as  the  commencement  of  a  new  action,  and 
therefore  an  amendment  changing  the  name  was  per- 
missible.^ And  where  a  suit  was  commenced  against  the 
*' Abilene  Milling  Company,  a  corporation,  and  W.  H. 
Yohe  and  —  Glade  and  John  Doe,"  and,  after  learning 
that  a  mistake  was  made  in  supposing  the  defendant  com- 
pany was  a  corporation,  leave  was  asked  to  amend  by 
making  an  entire  substitution  of  new  names  of  the  per- 

Irvine,   74   Cal.   442,   16   Pac.   236;  Action    against  A   and    B,   "late 

Winter  v.  McMillan,  87  Cal.  265,  22  partners,"    amended    by    omitting 

Am,  St.  Rep.  243,  25  Pac.  407.  the    words    "late    partners,"    and 

5  Merchants'  Trust  Co.  v.  Bentel,  making  all  the  persons  interested 
10  Cal.  App.  75,  78,  101  Pac.  1103.  ^^^^.^^  ^^  ^^^^  ^^j^.  ^^^,^  ^^^  ^^  jq. 

6  As  to  theory  of  the  case,  see,  ^^^^^^^  ^  ^^^  ^^^^^  ^^  action.- 

ante,   §§529-534.  „  ,         „        ,•,.         r,o  --,  .    ncA 

'  ^,  -r      A  r^       lA       Stewart  v.  Spaulding,  72  Cal.  264, 

T  Hannon  v.  Nuevo  Land  Co.,  14 

Cal.  App.  700,  112  Pac.  1103.  ^^  ^^^-  ^^'^r 

s  Skinner  v.  Knickrehm,  10  Cal.  o  Lilly  v.  Tobbein,  103  Mo.  477. 

App.  596,  102  Pac.  947,  949.  23  Am.  St.  Rep.  887,  15  S.  W.  618. 

872 


Ch.  v.]  NEW  PARTIES — NECESSITY  AND  GROUNDS.  §  648 

sons  doing  business  as  the  Abilene  Milling  Company; 
such  an  amendment  was  held  to  be  permissible  under 
the  code  authorizing  the  court  to  add,  by  way  of  amend- 
ment, the  name  of  the  only  substantial  party  plaintiff  or 
defendant,  where  such  amendment  would  not  be  in  effect 
the  institution  of  an  entirely  new  suit.^^  But  any  attempt 
to  change  a  cause  of  action  against  a  corporation  to  one 
against  defendants  as  indi\dduals  can  not  be  permitted 
under  the  guise  of  an  amendment  bringing  in  necessary 
new  parties. ^^ 

§  648.    Necessity  for  and  grounds  of.     In  those 

cases  in  which  a  new  party  is  sought  to  be  brought  in 
by  a  cross-complaint,  where  such  party  is  not  necessary 
to  the  complete  determination  of  the  controversy  before 
the  court,  such  party  will  not  be  ordered  to  be  brought 
in  ;^  but  where  such  party  is  necessary  to  the  full  deter- 
mination of  the  controversy  raised  by  such  cross-com- 
plaint, which  controversy  is  required  to  be  determined 
by  the  court  in  that  action,  such  party  must  be  ordered 
brought  in  under  the  provisions  of  the  California  code  as 
set  out  in  the  last  section.-  It  has  been  said  that  the 
power  of  the  court  to  order  the  bringing  in  of  new  par- 
ties for  the  full  determination  of  the  controversy  before 
the  court  is  discretionary,^  and  that  its  action  in  bringing 

10  Glover  &  Son  Commission  Co.  i  Reed  v.  Wing,  168  Cal.  706,  144 

V.  Abilene  Milling  Co.,  136  Mo.  App.  Pac   964 

365.  116  S.  W.  1112,  1113.  See  Lilly  /gee  'winter  v.  McMillan.  87 
V.  Tobbein,  103  Mo.  477,  23  Am.  St. 


Cal.  256,  265.  22  Am.  St.  Rep.  243, 
25   Pac.   407;    Eureka,   City   of,   v. 


Rep.  887,  15  S.  W.  618;  Altheimer 

V.  Teuscher,  47  Mo.  App.  284; 

Hajek  V.  Benevolent  Soc,  66  Mo.  ^^^es,    120    Cal.    54,    52    Pac.    125: 

App.    568;    Jordan    v.    Chicago    &  MacKinzie   v.    Hodgkin,   126   Cal. 

A.   R.    Co.,    105    Mo.    App.   446,    79  591,   77  Am.  St.   Rep.  209,  59  Pac. 

S.  W.  1155.  26. 

1 1  Dodge  V.   Chambers,  43   Colo.  3  Provision    mandatory    and    not 

366,  96  Pac.  178,  181.     See  Thomp-  in  the  discretion  of  the  tiial  judge, 

son  V.  White,  25  Colo.  226,  240,  54  according  to  decisions  of  the  state 

Pac.  718,  724;   Davis  v.  Johnson,  4  supreme    court. — See,   ante,    §  647, 

Colo.  App.  545,  548,  36  Pac.  887.  footnote  9. 

873 


§  649  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

in  new  parties  on  the  coming  in  of  a  cross-complaint,  to 
which  the  plaintiff  is  made  a  defendant,  will  not  be  dis- 
turbed where  the  plaintiff  made  no  objection  at  the  time 
and  saved  no  exception  to  the  order  of  the  court.^ 

New  parties  should  he  ordered  brought  in  where  the 
answer  filed  in  the  case  shows  that  they  are  necessary  to 
the  full  determination  of  the  controversy  before  the 
court,^  as  where  it  is  alleged  that  purchasers  from  defen- 
dant before  suit  are  not  made  parties;®  or  where  the 
contract  sued  upon  is  joint  in  its  nature,  and  all  the 
obligees  are  necessary  parties  to  the  action  but  some  are 
not  before  the  court/  In  an  action  to  rescind  certain  notes 
and  cancel  a  mortgage  on  specified  lands,  where  the  lands 
have  been  purchased  pendente  lite,  the  purchaser  should 
be  brought  in  as  a  defendant  f  and  in  an  action  to  declare 
a  resulting  trust^  as  to  stock  in  a  corporation,  where  it 
appears  that  one  not  a  party  to  the  suit  has  an  interest  in 
the  stock,  it  is  the  duty  of  the  court,  on  motion,  to  order 
such  party  brought  in  as  a  defendant,  and  a  failure  to 
do  so  is  error. ^^ 

<^  649,  Jurisdiction  and  authority.  We  have  al- 
ready seen  that  it  is  not  only  within  the  power,  but  that 
it  is  the  mandatory  duty,^  to  order  brought  in  all  persons 
as  parties  to  the  action  who  are  necessary  to  a  complete 
determination  of  the  controversy  before  the  court,-  and 
that  the  court  not  only  may  but  should  make  such  order  of 
its  owTi  motion,^  under  the  provisions  of  the  California 

4  Syvertson  v.  Butler,  3  Cal.  App.  lo  O'Connor  v.  Irvine,  74  Cal. 
345,  85  Pac.  164.                                       435,  16  Pac.  236. 

5  See,  ante,  §  647,  footnote  4.  See,  also,  ante,  §  639,  footnote  4. 

1  Syvertson  v.  Butler,  3  Cal.  App. 


6  Robinson  v.   Gleason,    53   Cal 
38. 


345,  85  Pac.  164,  to  the  effect  that 
the    court's   power   is    "discretion- 

7  Harrison  v.  McCormick,  69  Cal.      ^^ .,  j^  thought  not  to  be  a  sound 
616,  11  Pac.  456.  construction  of  the  statutory  pro- 

8  Matteson  v.  Wagoner,  147  Cal.      vision. 

739,  82  Pac.  346.  2  See,   ante,   §  647,   footnote  3. 

9  As  to  actions  to  enforce  con.  3  Robinson  v.  Gleason,  53  Cal.  38. 
structive  trusts,  see,  post,  §  691.  See,  ante,  §  648,  footnote  2. 

874 


eh.  v.]  MODE  OF  BRIXGIXG  IX  PARTIES.  §  G50 

Code  of  Civil  Procedure.^  This  rule  is  especially  ap- 
plicable in  suits  in  equity,  where  complete  equity  can  not 
be  done  without  the  presence  of  other  persons  as  parties  f 
and  this  includes  persons  who  purchased  an  interest  in  tlie 
property  which  is  the  subject-matter  of  the  action  or  suit 
pendente  lite''  and  after  issue  joined  on  the  original  com- 
plaint/ But  the  right  is  limited  to  the  persons  properly 
parties  under  the  issues  as  framed  in  the  pleadings  in  the 
case ;  a  stranger  to  the  action  can  not  require  the  bringing 
in  of  new  parties.  Thus,  under  the  provisions  of  the  Cali- 
fornia procedural  code,^  permitting  a  defendant  who 
seeks  affirmative  relief  relating  to  the  contract  on  which 
the  action  is  brought,  or  affecting  the  property-  which  is 
the  subject-matter  of  the  action  or  suit,  in  addition  to  his 
answer,  to  file  a  cross-complaint,  applies  primarily  to  the 
person  or  persons  whom  the  plaintiff  has  made  defen- 
dants in  the  action  at  law  or  suit  in  equity ;  and  before 
any  other  person  can  take  advantage  of  the  statutory 
provision  he  must  be  made  a  party  to  the  action,  and  his 
proposed  cross-complaint  must  be  such  as  will  warrant 
the  court  in  ordering  him  brought  in  as  a  party  defen- 
dant.^ 

§  650.    Mode  of  bringing  in.     In  those  cases  in 

which  the  court  finds  that  persons  not  before  the  court  are 
necessary  parties  to  a  full  and  complete  determination  of 
the  controversy  before  the  court,  the  trial  judge  may 
order  such  parties  to  be  brought  in  by  an  amended  com- 
plaint,^  supplemental  complaint,^  or  on  motion  simply 

4  De  Leonis  v.  Hammel,  1  Cal.  Proc,  2d  ed.,  §442;  Bien.  Supp. 
App.  390,  82  Pac.  349.  1915,  p.  3066. 

5  Huber  v.  Clarke,  1  Cal.  Un-  »  East  Riverside  Irr.  D  i  s  t.  v. 
rep.  419.  Halcomb,  126  Cal.  315,  58  Pac.  817. 

6  Matteson  v.  Wagoner,  147  Cal.  i  Harrison  v.  McCormick,  69  Cal. 
739,  82  Pac.  346.  616,    621,    11    Pac.    456;    People's 

7  People's  Ditch  Co.  v.  Seventy-  Water  Ditch  Co.  Seventy-six  Land 
Six  Land  &  Water  Co.,  5  Cal.  Un-  &  Water  Co.,  5  Cal.  Unrep.  292. 
rep.  292,  44  Pac.  176.  44  Pac.  176. 

8  Kerr's    Cyc.    Cal.    Code    C  i  v.  2  See,  ante,  §  639. 

875 


§§  651,  652       CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

and  without  service  of  process  f  but  it  seems  that  it  may 
not  be  done  by  way  of  cross-complaint.^ 

§  651.  Common  or  general  interest.  Under  the  pro- 
visions of  the  California  and  other  procedural  codes, 
those  who  are  united  in  interest  must  be  joined  as  parties, 
but  that  when  the  interest  is  common  or  general  of  many 
persons,  one  or  more  may  defend  for  all.^  The  whole 
question  of  virtual  representation  has  been  sufficiently 
discussed  in  the  section  treating  of  associations,  societies 
and  clubs.- 

§  652.  Coparceners.  Under  the  California  procedural 
code,  any  number  of  coparceners  may  defend  any  civil 
action  or  proceeding  for  the  protection  of  the  rights  of 
such  parties.^  In  an  action  against  a  partnership,  the 
partners  may  be  sued  under  their  common  name,  whether 
it  includes  or  comprises  the  names  of  the  persons  asso- 
ciated or  not;-  and  when  the  obligation  which  is  the 
subject-matter  of  the  action  shows  on  its  face  that  it  is  a 
partnership  obligation,  a  direct  averment  that  defendants 
were  partners  is  not  essential.^  The  California  code  pro- 
vides^ that  in  an  action  against  an  association,  including 
copartners,  the  judgment  may  run  against  the  joint  and 
individual  property  of  the  partner  served,  and  against 
the  joint  property  of  the  partner  not  served.  The  con- 
stitutionality of  the  statute,  in  so  far  as  it  attempts  to 
impose  a  liability  upon  the  person  or  property  of  the 
partner  not  served,  has  been  doubted  in  some  cases,^  and 

3  Emeric  v.  Alvarado,  64  P  a  c.  2  See,  ante,  §  644,  footnote  8,  and 
529,  2  Pac.  418.                                        text. 

4  Clark  V.  Kelley,  163   Cal.   207.  '  ^allock  v.  Jaudin.  34  Cal.  167. 

124  Pac.  846.  -^'^-         ,      ^         ^  ,     ^  ^      ^• 

4  Kerr's    Cyc.    Cal.    Code    C  i  v. 

1  Kerr's  Cyc.  Cal.  Code  Civ.  p^^^  ^  gd  ed.,  §388;  Consolidated 
Proc,   §  382.  S^jpp   i906-1913,  p.  1420. 

2  Supra,  §  644.  "  ^^  Tay  v.  Hawley,  39  Cal.  93.   But 
1  Kerr's    Cyc.    Cal.    Code    C  i  v.      see  Welch  v.  Kirkpatrick,  30  Cal. 

Proc,  §  384.  202,  89  Am.  Dec.  85. 

87G 


ch.  v.] 


COPARCENERS — AS  DEFENDANTS. 


§  652 


raised  but  not  decided  in  others.^  But  a  party  can  only  ])e 
bound  on  a  note  executed  in  a  firm  name,  who  is  actually 
a  member  of  the  firm  executing  the  same,  or  has  held  him- 
self out  as  a  member  so  as  to  give  the  firm  credit  on  liis 
responsibility.  So,  it  would  seem  dormant  partners  not 
disclosed  need  not  be  joined  as  defendants."  All  partners 
are  liable  for  fraudulent  representations  of  one  made  in 
the  course  of  partnership  business.^  So  a  partner  is  liable 
to  third  persons  for  injuries  occasioned  by  negligence,  if 
committed  in  the  course  of  the  partnership  business." 
In  suit  to  take  an  account  and  dissolve  a  mining  partner- 
ship, all  those  owning  interests  are  necessary  parties 
defendant.^^  A  partner  may  be  sued  at  law  by  his  copart- 
ner or  one  who  has  been  such,  where  the  balance  has  been 
ascertained  by  the  act  of  all  the  partners,  and  agreed  to 
as  constituting  such  balance,^ ^  but  not  until  such  balance 
has  been  ascertained.^^  But  one  partner  may  maintain  an 


6  Booth  V.  Gamble-Robinson  Co., 
139  Cal.  175,  177,  72  Pac.  908. 

7  See:  KAN.— Pitkin  v.  Benfer, 
50  Kan.  108,  34  Am.  St.  Rep.  110, 
31  Pac.  695.  MD.— Mitchell  v.  Doll, 
2  Har.  &  G.  159.  MASS.— Lord  v. 
Baldwin,  23  Mass.  (6  Pick.)  352; 
Wood  V.  O'Kelley,  62  Mass.  (8 
Gush.)  406.  MO.— Hahlo  v.  Mayer, 
102  Mo.  93,  22  Am.  St.  Rep.  380,  13 
S.  W.  804,  15  S.  W.  750.  N.  Y.— 
Clarkson  v.  Carter,  3  Cow.  84;  New 
York  Dry  Dock  Co.  v.  Treadwell, 
19  Wend.  525;  North  v.  Bloss,  30 
N.  Y.  374;  Hurlbut  v.  Post,  14  N.  Y. 
Super.  Ct.  Rep.  (1  Bosw.)  28. 

s  Griswold  v.  Haven,  25  N.  Y. 
595,   82   Am.   Dec.   386. 

9  Hess  V.  Lowrey,  122  Ind.  225, 
17  Am.  St.  Rep.  355,  7  L.  R.  A.  90, 
23  N.  E.  156;  Whittaker  v.  Collins, 
34  Minn.  299,  57  Am.  Rep.  55,  25 
N.  W.  632;  Cotter  v.  Bettner,  14 
N.  Y.  Super.  Ct.  Rep.  (1  Bosw.) 
490. 


As  to  liability  of  partners  for 
torts,  see  note  51  L.  R.  A.  463. 

As  to  liability  of  one  partner  for 
tortious  acts  of  another,  see  note 
93  Am.  St.  Rep.  666. 

10  Settembre  v.  Putnam,  30  Cal. 
490. 

Mining  partnership  combining 
some  of  the  incidents  of  ordinary 
trade  partnerships,  and  some  of 
the  incidents  of  tenancies  in  com- 
mon. —  Settembre  v.  Putnam,  30 
Cal.  490,  493. 

11  Ross  V.  Cornell,  45  Cal.  133: 
Hoff  V.  Rogers,  67  Miss.  208,  19 
Am.  St.  Rep.  301,  7  So.  358;  Newhy 
V.  Harrell,  99  N.  C.  149,  6  Am.  St. 
Rep.  503,  5  S.  E.  284. 

12  Id.;  Caurse  v.  Prince,  1  Mill. 
Const.  (S.  C.)  416,  12  Am.  Dec. 
649;  Bruce  v.  Hastings,  41  Vt.  380, 
98  Am.  Dec.  592. 

See  note  12  Am.  Dec.  649-656. 


877 


§§653,654  CODE  PLEADING   AND   PRACTICE.  [Pt.  Ill, 

action  in  damages  against  another  partner  for  injury  to 
the  firm  business.^^ 

<§>  653.  Corporations.  Corporations  are  made  suable 
in  their  corporate  name.  We  have  already  discussed  the 
changing  of  a  suit  brought  against  a  corporation  to  one 
against  individuals,  on  learning  that  there  was  in  fact 
no  incorporation/  so  long  as  there  is  no  change  in  the 
cause  of  action.-  In  an  action  by  a  stockholder  seeking 
relief  against  directors  who  are  improperly  diverting  the 
funds  of  the  corporation,  it  is  not  necessary  to  join  as 
parties  directors  whose  acts  are  not  complained  of,  but  it 
is  necessary  that  the  corporation  should  be  joined,  as  the 
action,  though  in  the  name  of  the  plaintiff,  is  in  reality  in 
behalf  of  the  corporation.^  Such  an  action  may  be  brought 
without  joining  other  stockholders  as  well  as  on  behalf  of 
other  stockholders.* 

<^  654.  Decedent  's  personal  representative.  An  execu- 
tor or  administrator  of  a  deceased  joint  obligor  may  be 
joined  as  a  defendant  with  the  surviving  obligor  or  obli- 
gors.^ At  common  law  there  were  valid  formal  reasons 
against  joining  the  executor  or  administrator  of  a  joint 
and  several  obligor  with  the  surviving  obligor  or  obli- 
gors, and  such  joinder  was  formerly  not  permitted  in 
California;-  but  since  the  enactment  of  the  procedural 
code^  providing  that  "any  person  may  be  made  a  de- 
fendant who  has  or  claims  an  interest  in  the  controversy 

13  Boughner  v.  Black,  83  Ky.  521,  •*  Id.;  McConnell  v.  Combination 

4  Am.  St.  Rep.  174.  Min.   &  Mill.  Co.,  30  Mont.  239, 

.As    to    power   and    authority    of  250,  104  Am.  St.  Rep.  703,  76  Pac. 

partners,  their  mutual  obligations,  194. 

liabilities,  etc.,  see  Kerr's  Cyc.  Cal.  i  Bostwick  v.    McEvoy,    62    Cal. 

Civ.  Code,  §§2424-2520.  496;  Briggs  v.  Brun,  123  Cal.  657, 

1  See,    ante,    §  647,    footnote    10,  56  Pac.  886. 

and  text.  2  Humphreys    v.    Crane,    5    Cal. 

2  See  Id.,  footnote  4,  and  text.  173;  May  v.  Hanson,  6  Cal.  642. 

3  Wickersham  v.  Crittenden,  93  3  Kerr's  '  Cyc.    Cal.    Code    C  i  v. 
Cal.  17,  28  Pac.  788.  Proc,  §  379. 

878 


Ch.  v.]  DEFENDANTS — IN  EJECTMENT.  §  655 

adverse  to  the  plaintiff,*  or  who  is  a  necessary  party  to 
a  complete  determination  or  settlement  of  the  question 
involved  therein,^  the  connnon-Iaw  formal  reasons  are 
done  aAvay  with,  and  in  suits  on  joint  obligations  the  per- 
sonal representatives  of  a  deceased  obligor  may  be  made 
a  party  defendant  with  the  surviving  obligors." 

§  655.  Ejectment.  The  rule  as  to  making  parties 
defendant  person  who  are  proper  parties  plaintiff  but 
who  refuse  to  join  as  plaintiffs^  does  not  apply  in  the 
case  of  ejectment,-  for  the  reason  that  under  the  provi- 
sion of  the  California  procedural  code,  and  other  pro- 
cedural codes  wdth  like  provisions,  persons  holding  as 
joint  tenants,^  or  as  tenants  in  common,*  may  severally 
bring  and  prosecute  suits  for  the  enforcement  or  protec- 
tion of  the  rights  of  such  party.^ 

In  bringing  actions  in  ejectment,  the  general  rule  is 
that  the  action  should  be  commenced  against,  and  can 
])e  maintained  against,  only  the  real  party  in  possession, 
{.Ithough  he  is  not  personally  on  the  premises,  but  may  be 
in  possession  through  servants  and  employees.*^  A  mere 
party,  in  charge  for  others,  is  not  an  occupant.'''  But  an 
officer  of  the  United  States  in  possession,  on  behalf  of 
the  government,  of  the  demanded  premises  may  be  made 
defendant.^    Where  the  defendant  in  ejectment  has  pos- 

4  See,  ante,   §  636.  6  Polock  v.  Mansfield,  44  Cal.  36, 

5  See,  ante,  §  637.  13  Am.  Rep.  151;   Shaw  v.  Hill,  S3 

6  Lawrence  v.  Doolan,  68  Cal.  Mich.  322,  21  Am.  St.  Rep.  607,  47 
309,  5  Pac.  484,  9  Pac.  159;  Briggs  N.  W.  247.  See  Valentine  v.  Ma- 
V.  Breen,  123  Cal.  657,  662,  56  Pac.  honey,  37  Cal.  389. 

633,    886;     Fisher    v.  Hopkins,    4          7  Hawkins   v.   Reichert,   28   Cal. 

Wyo.  379,  62  Am.  St.  Rep.  38,  34      534;   People  v.  Ambrecht,  11  Abb. 

Pac.  899.  Pr.   (N.  Y.)  97;  affirmed,  24  How- 

1  See  ante,  §  641.  Pr.  610. 

2  Paducah  &  A.  R.  Co.  v.  Dipplo,  s  Polock  v.  Mansfield,  44  Cal.  36, 
16  Ky.  L.  Rep.  62.  40-3,  13  Am.  Rep.  151;  King  v.  La 

3  S^ie,  post,  §  673.  Grange,   61   Cal.   227,   230;    Lee  v. 

4  See,  post,  §  700.  Kaufman,    3    Hughes    36,    98    Fed. 

5  Kerr's  Cyc.  Cal.  CoJo  Civ.  Cas.  No.  8191;  Miller  v.  Blockett, 
Proc,  §  384.  47  Fed.  547,  548. 

870 


§  655  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

session  and  a  life-estate  in  the  property,  his  heirs  can 
not  be  made  parties  defendant  ^\ath  him  in  the  proceed- 
ings.^ A  railroad  company  who  have  simply  laid  rails 
on  a  public  highway  are  not  occupants.^''  But  if  the 
landlord  be  joined  with  the  tenant  as  defendant  in  an 
action  of  ejectment,  judgment,  if  for  the  plaintiff,  must 
be  against  both.^^  In  ejectment  to  recover  an  undivided 
interest  in  a  mining  claim,  it  is  not  necessary  to  include 
as  defendants  those  holding  the  other  undivided  inter- 
ests.^^ 

A  landlord  may  come  in  and  defend  in  an  action  in 
ejectment,  where  summons  is  served  on  a  tenant,  by  a 
proper  showing,  even  after  a  default  is  taken.  The  stat- 
ute should  in  such  cases  be  construed  so  as  to  dispose  of 
actions  of  this  character  as  nearly  on  their  merits  as 
possible,  and  without  unreasonable  delay,  regarding  mere 
technicalities  as  obstacles  to  be  avoided. ^^  A  landlord 
may  defend  in  the  name  of  the  tenant,  but  not  in  his  o\\ti 
name.^* 

Persons  renting  different  apartments  in  the  same  house 
may  be  joined  as  defendants. ^^  And  the  same  is  true  of 
parties  claiming  title,  accompanied  by  acts  of  ownership, 
to  unoccupied  premises. ^^^  And  any  number  may  be  made 
defendants,  subject  to  their  right  to  answer  separately.^^ 

As  to   when    public  officer  as-  i^  See  Garner  v.  Marshall,  9  Cal. 

suming  to  act  for  government  sub-  270;    Dimick   v.   Deringer,   32   Cal. 

ject  to  suit,  see  note  108  Am.  St.  488;  Valentine  v.  Mahoney,  37  Cal. 

Rep.  830.  393;    Hussman   v.   Wilke,    50    Cal. 

;•  Allen   V.   Ranson,   44   Mo.    263,  250. 

100  Am.  Dec.  282.  15  Pearce    v,    Calden,    8    Barb. 

10  Redfield  v.  Utica  &  Syracuse  (N.  Y.)  522. 

R.  Co.,  25  Barb.   (N.  Y.)   54.  16  Garner    v.    Marshall,    9    Cal. 

11  Kerr's  Cyc.  Cal.  Code  Civ.  268;  Taylor  v.  Crane,  15  How.  Pr. 
Proc,   §  379.  (N.  Y.)  358. 

12  Waring  v.  Crow,  11  Cal.  366.  17  Wlnans  v.  Christy,  4  Cal.  70, 

13  Roland  v.  Kreyenhagen,  18  60  Am.  Dec.  597;  Ritchie  v.  Dor- 
Cal.  455;  Barrett  v.  Graham,  19  land,  6  Cal.  33;  Ellis  v.  Jeans,  7 
Cal.  632;  Ried  v.  Calderwood,  22  Cal.  417;  Curtis  v.  Sutter,  15  Cal. 
Cal.  465;  Bailey  v.  Taafe,  29  Cal.  264;  Marion  v.  Fager,  15  Cal.  276; 
424.  Leese    v.    Clark,    28    Cal.    35;    An- 

C80 


Cll.  v.]  DEFENDANTS — IX  SUITS  IX  EQUITY.  §  G5C 

<§>  656.  Equity  suits.  The  rule  that  all  persons  who 
have  or  claim  an  interest  in  the  subject-matter  of  the 
action  adverse  to  the  plaintiffs,  or  whose  interests  would 
be  adversely  affected  by  any  judgment  the  plaintiff's 
might  recover  therein,  are  proper  parties,^  and  that  all 
persons  who  are  necessary  to  a  complete  adjudication 
and  determination  of  the  controversy  before  the  court 
are  necessary  parties,^  applies  in  suits  in  equity  as  well 
as  in  actions  at  law,^  But  this  rule  does  not  extend  so 
as  to  include  all  persons  who  may  be  consequentially 
interested  in  the  suit;^  although  we  will  see  in  a  later 
section  that  a  cestui  que  trust  may  be  made  a  party  de- 
fendant, in  an  action  by  creditors  to  reach  trust  property, 
in  those  cases  in  which  the  facts  and  circumstances  justify 
it.^  In  those  cases  in  which  the  rights  the  plaintiff  seeks 
to  enforce,  or  the  relief  he  demands,  are  the  same  against 
and  affect  alike  all  of  several  persons,  they  may  be  prop- 
erly joined  as  defendants,  notwithstanding  the  fact  that 
their  interests  and  obligations  among  themselves  are  dis- 
tinct and  independent.^  Thus,  in  an  action  to  rescind  a 
contract  for  the  purchase  of  the  capital  stock  of  a  cor- 
poration, and  to  recover  the  money  paid  thereon,  because 
of  fraudulent  representations  made  to  induce  the  pur- 
chase of  such  stock,  the  corporation  is  a  necessary  defen- 
dant," and  may  be  joined  with  a  stockholder  owning  or 

drews  v.  Corlile,  20  Colo.  370,  38  840.     IOWA—  Bowers   v.   Kee- 

Pac.    465;     Fosgate    v.    Herkimer  secher,  9  Iowa  422.     ME. — Bugbee 

Mfg.  &  Hydr.  Co.,  12  Barb.  (N.  Y.)  v.  Sargent,  23  Me.  269.     MASS.— 

352;   affirmed,  12  N.  Y.  580;   Wal-  Dimmock  v.   Bixby,  37   Mass.    (20 

ker  V.  Read,  59  Tex.  187,  Pick.)    377.     MISS.  — Butler   v. 

1  See,  ante,  §  636.  Spann,  27  Miss.  234;  Farniquet  v. 


2See,  ante,  §§  637-639. 


Forstall,  34  Miss.  87.   N.  Y.— Mack 

V.  Latter,  178  N.  Y.  525,  67  L.  R.  A. 

3  See  20  R.  C.  L.  607,  §  8.  ^26,  71  N.  E.  97.    N.  C— Vann  v. 

4Winslow  V.  Minnesota  &  Pac.      Hargett,    22   N.    C.    (2    Div.    &    B. 

R.  Co.,  4  Minn.  313,  77  Am.   Dec.      gq.)    31,  32  Am.   Dec.   689.     VT.-- 

519.  Lewis  v.  St.  Albons  Iron  &   Steel 

5  See,  post,  §  703.  Works,  50  Vt.  477. 

6  AIJ^. — Hall  V.  Henuerson,  134  7  |n  bill  for  specific  performance 
Ala.  4.^.5,  63   L.   R.  A.  673,  32   So.      of  contract  for  sale  of  shares  of 

I  Code  PI.  and  Pr.— 56  ggl 


§656 


CODE   PLEADING   AND   PRACTICE. 


[PL  in, 


controlling  all  the  stock  of  the  corporation,  who  made  the 
false  representations,^  or  with  several  of  the  individual 
members,  holders  of  the  stock  of  the  corporation,  each  of 
whom  joined  in  making  the  fraudulent  representations 
complained  of.^  Where  several  persons  hold  under  titles 
derived  from  a  common  source,  and  their  interests  are 
all  alike  affected,  they  should  all  be  made  parties  de- 
fendant,^^— e.  g.,  where  property  is  fraudulently  con- 
veyed and  parceled  out  by  its  owmer  to  several  persons  ;^^ 
but  where  several  persons  claim  under  distinct  and  un- 
connected titles,  whether  they  are  to  be  joined  as  defend- 
ants depends  upon  the  facts  and  circumstances  of  each 
particular  case,  and  the  court  is  required  to  exercise  a 
sound  discretion  on  the  subject.^^    Misjoinders^  and  mul- 


stook  in  a  corporation,  where  it  is 
not  alleged  that  the  other  party  to 
the  contract  is  insolvent,  or  that 
he  is  about  to  dispose  of  his  stock, 
the  corporation  is  not  a  necessary 
party. — See,  post,  §  691. 

s  Cawthra  v.  Stewart,  59  Misc. 
(N.    Y.)    38,    43,    109   N.   Y.    Supp. 

770. 

!'  Lehman-Charley  v.  Bartlett,  135 
App.  Div.  (N.  Y.)  674,  684,  120 
N.  Y.  Supp.  501;  affirmed,  202 
N.  Y.  524,  95  N.  E.  1125;  Hecken- 
dorn  V.  Romadka,  138  Wis.  423,  12 
N.  W.  257. 

1-1  As  to  holders  of  titles  from  a 
common  source,  see,  supra,  §  597. 

11  See:  ALA. — Planters'  &  Mer- 
chants' Bank  v.  Walker,  7  Ala.  926. 
N.  H. — Chase  v.  Searles,  45  N.  H. 
511.  N.  J.— Randolph  v.  Daly,  16 
N.  J.  Eq.  (1  C.  E.  Gr.)  613.  N.  Y. 
—Fellows  V.  Fellows,  4  Cow.  682, 
15  Am.  Dec.  412;  Boyd  v.  Hoyt,  5 
Paige  65;  Lawrence  v.  Bank  of 
Republic,  35  N.  Y.  320,  31  How. 
Pr.  502;   Reed  v.  Stryker,  4  Abb. 


Ct.  App.  Dec.  26,  12  Abb.  Pr.  47, 
reversing  6  Abb.  Pr.  109:  Ham- 
mond V.  Hudson  River  Iron  & 
Mach.  Co.,  20  Barb.  378.  N.  C— 
Fisher  v.  Southern  Loan  &  Trust 
Co.,  138  N.  C.  224,  231,  50  S.  E. 
659.  S.  C— Williams  v.  Neal,  10 
Rich.  Eq.  338,  73  Am.  Dec.  94. 
TENN.— Bartee  v.  Tompkins,  36 
Tenn.  (4  Sneed)  623.  FED.— Gaines 
V.  Chew,  43  U.  S.  (2  How.)  619,  11 
L.  Ed.  402. 

12  See  Gaines  v.  Chew,  43  U.  S. 
(2  How.)  619,  11  L.  Ed.  402.  See 
Bowers  v.  Keesecher,  9  Iowa  422; 
Warren  v.  Warren,  56  Me.  360; 
Butler  v.  Sparm,  27  Miss.  234;  Ed- 
wards V.  Sartor,  1  S.  C.  266;  Camp- 
bell v.  Mackay,  7  Sim.  564,  58  Eng. 
Repr.  954,  1  Myl.  &  C.  603,  40  Eng. 
Repr.  507,  13  Eng.  Ch.  Rep. 

See  Story's  Eq.  PI.  (9th  ed.), 
§530. 

See,  also,  numerous  authorities 
in  point  and  discussion  in  3  Rose's 
Notes  on  U.  S.  Reps.,  pp.  919-924. 

13  As  to' misjoinder,  see,  post, 
§  683 


882 


ch.  v.] 


DEFENDANTS — IN  SUITS  IN  EQUITY. 


§65G 


tifariousness^*  are  evils  to  be  studiously  avoided;  but 
keeping  strictly  within  the  rules  in  the  various  matters 
that  arise  in  suits  in  equity  is  not  unfrequently  a  difficult 
problem.  It  may  be  laid  down  as  a  general  rule  that 
there  are  three  classes  of  persons  to  be  dealt  with  in 
equity  suits,  who  may  or  may  not  be  parties,  or  must  be 
made  parties,  as  follows:  (1)  Persons  who  may  or  may- 
not  be  made  parties  defendant  by  the  plaintiff  without 
notice  by  the  court ;^^  (2)  persons  not  so  necessary  to 
granting  the  relief  asked  that  their  absence  defeats  the 
jurisdiction  of  the  court,  but  w^hose  interests  are  such 
that  the  court,  when  those  interests  are  brought  to  its 
attention,  may  order  them  to  be  brought  in  as  defendants, 
where  they  are  mthin  the  jurisdiction  of  the  court  ;^^  and 
(3)  persons  whose  interests  in  the  subject-matter  of  tlie 
suit,  and  in  the  relief  demanded,  are  such  that  the  court 
can  not  proceed  to  a  determination  of  the  controversy 
without  their  presence;^'  and  when  such  persons  can  not 


14  Misjoinder  of  causes  bringing 
defendants  whose  interests  are  so 
different  in  character  that  the 
court  will  not  permit  them  to  be 
litigated  in  one  action,  is  fre- 
quently spoken  of  as  "multifarious- 
ness."—See  Story's  Eq.  PI.  (9th 
ed.),  §530. 

15  Russell  V.  Clark,  11  U.  S.  (7 
Cr.)  69,  3  L.  Ed.  271;  Kendig  v. 
Dean,  97  U.  S.  423,  24  L.  Ed.  1061. 

16  Buttrick  Pub.  Co.  v.  Fisher, 
203  Mass.  122,  133  Am.  St.  Rep. 
283,  89  N.  E.  189;  Kidd  v.  New 
Hampshire  Tract  Co.,  72  N.  H. 
273,  66  L.  R.  A.  574,  56  Atl.  465; 
Russell  V.  Clark,  11  U.  S.  (7  Cr.) 
69,  3  L.  Ed.  271;  Mechanics'  Bank 
V.  Seton,  26  U.  S.  (1  Pet.)  299,  7 
L.  Ed.  152;  Vattier  v.  Hinde,  32 
U.  S.  (7  Pet.)  252,  8  L.  Ed.  675; 
Story  V.  Livingston,  38-  U.  S.  (13 
Pet.)  359.  10  L.  Ed.  200;  Ribon  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  S3  U.  S. 


(16  Wall.)  446,  21  L.  Ed.  367;  Ken- 
dig  V.  Dean,  97  U.  S.  423,  24  L.  Ed. 
1061. 

iTSee:  CONN.  —  N  i  c  h  o  1  s  v. 
Nichols,  79  Conn.  644,  654,  66  Atl. 
161,  164.  N.  Y.— Mahr  v.  Norwich 
Union  Fire  Ins.  Co.,  127  N.  Y.  452, 
461,  28  N.  E.  391,  393.  OKLA.— 
Lynch  v.  United  States.  13  Okla. 
142,  158,  73  Pac.  1095,  1100.  FED. 
—Russell  V.  Clark,  11  U.  S.  (7  Cr.) 
69.  3  L.  Ed.  271;  Shields  v.  Barrow, 
58  U.  S.  (17  How.)  130,  139,  140, 
15  L.  Ed.  158,  160;  Christian  v. 
Atlantic  &  N.  C.  R.  Co.,  133  U.  S. 
233,  241,  33  L.  Ed.  589,  592,  10 
Sup.  Ct.  Rep.  260,  262;  California 
V.  Southern  Pac.  Co.,  157  U.  S. 
229,  249,  39  L.  Ed.  683,  691,  15  Sup. 
Ct.  Rep.  591,  599;  Tobin  v.  Walkin- 
shaw,  1  McA.  29,  Fed.  Cas.  No. 
14068;  Gray  v.  Larrimore,  4  Sawy. 
638,  650,  2  Abb.  (U.  S.)  542,  556. 
Fed.   Cas.   No.   5721;    Hamilton   v. 


883 


§  657  CODE  PLEADING  AND  PRACTICE,  [Pt.  Ill, 

be  subjected  to  the  jurisdiction  of  the  court,  the  suit  will 
not  be  entertained.^^ 

§  657.  Executors  and  administrators.  We  have  al- 
ready discussed  the  joinder  of  an  executor  or  adminis- 
trator in  a  suit  upon  a  joint,  or  upon  a  joint  and  several 
obligation,  with  the  surviving  obligor  or  obligors,^  and  it 
remains  to  discuss  the  question  of  making  executors  or 
administrators  parties  defendant  generally.  In  Califor- 
nia the  executor  or  administrator  of  a  decedent  is  entitled 
to  the  possession  of  the  entire  estate  of  the  deceased,  both 
real  and  personal.  The  Code  of  Civil  Procedure  provides 
that  ''actions  for  the  recovery  of  any  property,  real  or 
personal,  or  for  the  possession  thereof,  or  to  quiet  title 
thereto,  or  to  determine  any  adverse  claim  thereon,  and 
all  actions  founded  upon  contracts,  may  be  maintained  by 
and  against  executors  and  administrators  in  all  cases  in 
which  the  same  might  have  been  maintained  by  or  against 
their  respective  testators  or  intestates."-  "Any  person, 
or  his  personal  representatives,  may  maintain  an  action 
against  the  executor  or  administrator  of  any  testator  or 
intestate  who  in  his  lifetime  has  wasted,  destroj^ed,  taken, 
or  carried  away,  or  converted  to  his  own  use,  the  goods 
or  chattels  of  any  such  person,  or  committed  any  trespass 
on  the  real  estate  of  such  person."^  And  ''in  actions  for 
or  against  executors  or  administrators  it  is  not  necessary 
to  join  those  as  parties  to  w^hom  letters  were  issued,  but 
who  have  not  qualified."*  The  same  code  also  contains 
minute  provisions  requiring  a  creditor  of  a  deceased  to 
present  his  claim  against  the  estate  to  the  executor  or 

Savannah,  F.  &  W.  R.  Co.,  49  Fed.  in   the   suit.— Porter  v.   Clements, 

412,  418;  United  States  Telephone  3  Ark.  -382. 

Co.    V.    Central    Union    Telephone  is  20  R.  C.  L.  679,  §  18. 

Co.,  171  Fed.  135.  i  See,  ante,  §  654. 

Ends  of  justice  not  defeated  and  2  Kerr's     Cyc.     Cal.     Code     Civ. 

rights   of  absent  parties  will   not  Proc,  §  1582. 

be  affected,  must  be  made  to  ap-  3  Id.,  §  1584. 

pear  before  the  court  will  proceed  4  Id.,  §  1587. 

884 


Ch.  v.]  EXECUTORS  AND  ADMINISTRATORS.  §  657 

administrator  of  the  deceased  for  allowance  before  he 
can  maintain  an  action  thereon.^  In  construing  these 
provisions  of  the  Code,  it  has  been  repeatedly  held  that 
the  general  right  to  sue  an  executor  or  administrator 
was  taken  away  by  statute,  except  in  cases  where  the 
creditor's  claim  has  been  properly  presented  and  re- 
jected.^ If  an  executor  has  come  into  possession  of  the 
trust  fund  or  its  substitute,  so  that  the  same  can  be  iden- 
tified, he  can  be  held  to  account  and  charged  as  trustee, 
upon  the  same  terms  as  his  testator  held  the  trust,  and 
the  relation  of  trustee  and  cestui  que  trust  is  added  to 
that  of  executor.'^  In  suit  for  specific  performance  of 
testator's  contract  for  sale  of  lands,  the  executor  of  de- 
ceased should  join  as  plaintiff.-  In  a  suit  for  specific  per- 
formance against  heirs  on  their  ancestor's  contract, 
where  damages  are  demanded  in  the  alternative,  the  ex- 
ecutors or  administrators  should  be  made  parties,  or  no 
judgment  can  be  taken  for  such  damages.'-*  In  Nevada 
a  joint  action  can  not  be  maintained  against  the  sur\'ivor 
and  the  administrator  of  a  deceased  maker  of  a  promis- 
sory note;^**  and  the  same  was  the  rule  in  California 
before  the  adoption  of  the  procedural  code.^^    The  reason 

5  Eustace    v.    Johns,    38    Cal.    3,  s  Kerr's     Cyc.     Cal.     Code     Civ. 

23;  Dodson  V.  Nevitt,  5  Mont.  518,  Proc,     §1582;     Church's     Probate 

521,  6  Pac.  358.  Law  and   Practice,  vol.  1,  p.   742, 

See  Church's   Probate   Law  and  par.  12. 

Practice,  vol.  1,  pp.  665-788.  9  Kerr's     Cyc.     Cal.     Code     Civ. 

Claim  for  stockholder's  liability  proc,     §1582;     Church's     Probate 

of  decedent  need  not  be  presented.  Law  and   Practice,  vol.  1,  pp.  970 

—Miller   &   Lux   v.   Katz,    10   Cal.  ^^  g^q.    Massie's  Heirs  v.  Donald- 

App.  579,  102  Pac.  947.  ^^^^  8  Ohio  377. 

cElfisen  v.  Halleck,  6  Cal.  393;  ,      ,,           ,       ..    ,         ^          ,    ,^ 

TT     X     ,            T^     .         -in    r.  1     era.  '"    Kentucky    it   has    been    held 

Hentsch    v.    Porter,    10    Cal.    559;  ^   ^             ^      -^       ^      ,     .    .  ^     » 

„                   -r  ■,         n,,  ^  ,    o  that  executors  and  administrators 

Eustace  v.  Jahns,  38  Cal.  3.  ^                        *•        j   c      1      * 

,.           .             ,                  .,    ,  are  not  proper  parties   defendant 

See  discussion  and  cases  cited  .     '             o                  •« 

.     _.        ..„,..              ,  n  to  actions  to  enforce  specific  per- 

in  Church's  Probate  Law  and  Prac-  ^  ^        ■,      ^.           ^       ^     e 

,   .           „„„^,_  formance  of  decedent  s  contract  of 

tice,  vol.  1,  pp.  (32-(4(.  ,        ^  ,      j        ,-,              ,    ttj*^    q 

'      ^         '              ,        0-,  -^  1   irr  sale  of  lands.— Cowan   v.   Hite,   9 

7  Lathrop  V.  Bampton,  ol  Cal.  17.  .„  .    t^   ,,r       u  ^  000 

^^    .        ,,...■■      T^            r,,        c.i  Ky.  (2  A.  K.  Marsh.)  238. 
S9  Am.   Dec.  141;    Fox  v.  Toy,  S9 

Cal.  339,  23  Am.  St.  Rep.   474.  24  10  Maples  v.  Geller,  1  Nev.  233. 

Pac.  855,  26  Pac.  897.  11  See  discussion,  ante,  §  654. 

885 


§  658  CODE  PLEADING  AND  PRACTICE.  [Ft.  Ill, 

assigned  for  this  rule  is  that  the  judgment  against  the 
survivor  would  have  to  be  de  bonis  propriis,  and  against 
the  executor  adixdnistrator  de  bonis  testatoris,^-  which 
formal  reason  is  done  away  with  by  the  code.^^ 

The  general  rule  of  laiv  is  that  no  action  mil  lie  against 
an  executor  or  administrator  to  which  his  testator  or 
intestate  was  not  liable.^^  The  estate,  represented  by  a 
person  upon  whom  the  duty  of  keeping  the  premises  in 
repair  is  cast,  is  no  more  liable  for  his  neglect  of  that 
personal  duty  than  it  would  be  for  a  fine  which  might  be 
imposed  upon  him  by  a  criminal  court  for  an  assault  and 
battery  committed  by  him  while  in  possession  of  such 
estate.^^  In  actions  for  the  foreclosure  of  a  mortgage, 
against  the  estate  of  a  deceased  mortgagor,  his  heirs  are 
not  necessary  parties. ^*^  An  action  instituted  by  a  party 
on  one  side  for  individual  rights,  against  herself  as  ad- 
ministratrix of  her  husband's  estate,  is  irregular,  and 
should  not  be  upheld. ^^ 

§  658.  Fictitious  parties  defendant.  The  California 
procedural  code  provides  that  when  the  plaintiff  is  igno- 
rant of  the  name  of  a  defendant,  he  must  state  that  fact 
in  the  complaint,^  and  such  defendant  may  be  designated 
in  any  pleading  or  proceeding  by  any  name,  and  when 
his  true  name  is  discovered,-  the  pleading  or  proceeding 

12  Bank  of  Stockton  v.  Howland,  See  Church's  Probate  Law  and 
42  Cal.  129;   Mattison  v.  Childs,  5      Practice,  vol.  1,  p.  1082. 

Colo.  78.  17  Norton  v.  Walsh,  94  Cal.  564, 

13  See,  supra,  §  654.  29  Pac.  1109. 

14  Eustace  v.  Jahns,  38  Cal.  3.  See,  ante,  §  623. 

15  Id.;  Craton  v.  Wenlsger,  2  i  Form  of  averment  as  to  un- 
Tex.  202;  Able  v.  Chandler,  12  known  defendants,  Jury's  Adjudi- 
Tex.  88,  92,  62  Am.  Dec.  518.  cated  Forms  of  Pleading  and  Prac- 

10  Executor  represents  heirs  and  tice,  vol.  1,  p.  232,  Form  No.  152. 

devisees  and  a  judgment  against  2  Form    of   notice    for   leave    to 

him  binds  them  in  a   foreclosure  substitute  true  name. — Id.,  p.  234, 

proceeding. — Bayly    v.    Muehe,    65  Form  No.  153. 

Cal.   345,   348,   3   Pac.   467,   4    Pac.  Form  of  affidavit  to  obtain  leave 

486;  Dickey  V.  Gibson,  121  Cal.  276,  to  correct  fictitious  name. — Id.,  p. 

278,  53  Pac.  704.  234,  Form  No.  154. 

886 


eh.  v.]  FICTITIOUS  PARTIES  DEFENDANT.  §  'OoS 

must  be  amended  accordingly.^  Under  this  provision  of 
the  code  the  defendant  can  be  sued  by  a  fictitious  name- 
only  when  the  plaintiff  is  ignorant  of  his  true  name.  A 
defendant  served  under  a  fictitious  name  is  subject  as 
such  to  the  action  until  a  substitution  is  made.  The 
rights  of  other  parties  to  the  action  will  not  be  affected 
by  service  upon  the  party  c;ued  under  a  fictitious  name 
nor  by  his  appearance  in  a  suit.^  Where  the  complaint 
fails  to  contain  an  averment  that  the  plaintiff  was 
ignorant  of  the  true  name  of  the  defendant,^  and  the  de- 
fendant is  served  under  such  fictitious  name,  he  may 
appear  and  move  to  set  aside  the  service  and  dismiss  the 
complaint  where  no  offer  in  response  to  the  motion  is 
made  to  insert  the  true  name  in  the  complaint.*^  But  the 
service  of  summons  will  not  be  set  aside,  nor  the  action 
dismissed,  where  the  complaint  contains  the  averment 
that  the  plaintiff  was  ignorant  of  the  true  name  of  the 
defendant,  notwithstanding  the  showing  by  the  defend- 
ant that  the  plaintiff  might  have  ascertained  his  true 
name  by  examining  the  record  of  deeds  of  the  county  in 
which  the  land  affected  by  the  action  was  situated.' 

By  answering  a  defendant  sued  by  a  fictitious  name  does 
not  waive  amendment  of  the  complaint  describing  him  by 
his  true  name  f  judgment  can  not  be  taken  or  enforced 
against  a  party  thus  sued  until  the  complaint  is  amended 
by  inserting  the  true  name,^  and  such  a  judgment  will 
be  reversed  on  appeal;^"  but  such  a  judgment  will  not 

3  Kerr's     Cyc.     Cal.     Code     Civ.  f,  Rosencrantz  v.  Rogers.  40  Cal. 

Proc,  §474.  489,  492. 

Form  of  order  substituting  true  "  Irving  v.  Carpentier,  TO  Cul.  2  i. 

name  for  fictitious  name  in  com-  25,  11  Pac.  391. 

plaint,     see     Jury's     Adjudicated  s  McKinlay  v.  Tuttle.  42  Cal.  570, 

Form's   of   Pleading   and    Practice,  578. 

vol.  1,  p.  235,  Form  No.  155.  f  Campbell  v.  Adams.  50  Cal.  20 '. 

4Rachman    v.    Cathry,    113    Cal.  205;  Farrls  v.  Merritt.  63  Ca!.  US, 

498,  502,  45  Pac.  814.  119. 

5  See  footnote   1   and   text,   this  lo  San   Francisco.    City   and 

section.  County  of,  v.  Burr,  4  Cal.  Unrep. 

887 


§659  CODE    PLEADING   AND    PRACTICE.  [Ft.  III. 

be  void  and  the  Supreme  Court  may,  in  affirming  the 
judgment,  direct  the  complaint  to  be  amended,  as  of  a 
date  prior  to  the  judgment,  by  substituting  the  true  name 
of  the  defendant  sued  by  a  fictitious  name  and  against 
whom  judgment  was  recovered.^ ^  Amending  the  com- 
plaint by  inserting  the  real  name  of  the  defendant  sued 
by  a  fictitious  name  does  not  change  the  original  cause 
of  action. ^2 

§  659.  Fraud.  In  later  sections  we  shall  discuss  fully 
who  are  proper  parties  and  who  are  necessary  parties 
defendant  in  actions  of  torts  generally;^  in  this  place 
are  collected  a  few  instances  as  to  fraud  pure  and  simple. 
Suffice  it  to  say  generally  that  the  rules  as  to  proper 
parties-  and  as  to  necessary  parties,^  as  already  dis- 
cussed, apply.  Thus,  co-partners  may  be  joined^  in  an 
action  for  deceit  in  a  sale,  if  both  knomngly  make  false 
representations,  though  only  one  was  interested  in  the 
expected  fruits  of  the  fraud  f  or  for  fraudulently  recom- 
mending an  insolvent  person  as  worthy  of  credit.*^  In  an 
action  to  set  aside  a  conveyance  as  made  without  con- 
sideration and  in  fraud  of  creditors,  the  fraudulent 
grantor  is  a  necessary  party  defendant  ;'^  where  the  action 
is  to  set  aside  a  fraudulent  conveyance  made  by  a  surety 

634,  36  Pac.  771.     See  Martinez  v.  c  Patten  v.  Gurney,  17  Mass.  182, 

Dallas,   City   of,   102   Tex.    59,   113      9  Am.  Dec.  141. 

S.  W.  1167.  "*  Gaylords  v.  Kelshaw,  68  U.  S. 

(1  Wall.)  81,  17  L.  Ed.  612.  See 
Bromberg  v.  Heyer,  69  Ala.  25; 
Lawson  v.  Ross,  10  Colo.  App.  270, 
i2Farris  v.  Merritt,  63  Cal.  118,      5^   p^c.    731 ;    Purdy   v.   Gault.    19 

119-  Mo.  App.  204;    Richmond  v.   Don- 

1  See,  post,  §§  674,  701.  nell,  53  N.  J.  Eq.  34,  30  Atl.  553; 

2  See,  ante,  §  636.  First    Nat.    Bank    v.    Shuler.    153 

3  See,  ante,  §§  637-639.  ^^  ^-  ^^^'  ^'^  ''"'•  «*•  ««P-  «*^^'  ^' 

N.  E.   263;    Chester  v.  Chester,   7 

4  As    to    joinder    of    copartners      ^^^    ^.    j^^^^^  ^.    ^^^^.^^  ^^     ,. 

generally,  see,  ante,  §  652.  p^^j    ^Qg.    j^ays  v.  Hnmphrys,   37 

■-•Stiles  V.  White,  11  Met.  356;  Fed.  285;  Darnold  v.  Simpson,  114 
45  Am.  Dec.  214.  Fed.  370. 

888 


iiMahon   v.    San    Rafael    Turn 
pike  Road  Co.,  49  Cal.  269,  272. 


eh.  v.]  COXFLICTIXG  CLAIMS  TO  REALTY.  §  660 

on  a  bond,  who  has  since  deceased,  his  administrator  is  a 
necessary  party  defendant  f  and  a  fraudulent  grantor  is 
a  proper  party  defendant  in  an  action  to  subject  to  the  lien 
of  a  judgment  the  property  alleged  to  have  been  fraudu- 
lently conveyed,  but  he  is  not  a  necessary  party.^  In  an 
action  by  a  purchaser  at  an  execution  sale,  to  set  aside  a 
conveyance  alleged  to  have  been  made  by  the  judgment 
debtor  in  fraud  of  creditors  and  purchasers,  and  to 
recover  possession  of  the  property,  the  assignee  in  insol- 
vency of  the  judgment  debtor  is  a  proper  party  defend- 
ant, i*'  In  an  action  to  obtain  relief  from  a  judgment 
fraudulently  procured,  an  attorney-at-law  charged  with 
being  a  party  to  the  fraud  should  be  joined  \nth  tlie 
client.^^ 

Fraud  of  agent  or  servant  may  be  imputed  to  the  prin- 
cipal or  master,  and  the  latter  rightfully  made  a  ])arty 
defendant  in  an  action  founded  upon  such  fraud,  where 
such  fraudulent  act  w^as  done  by  the  agent  or  servant  in 
the  course  of  the  principal's  or  master's  business,  or  by 
such  agent  or  servant  within  the  scope  of  his  authority, 
and  for  the  benefit  of  the  principal  or  master,^-  although 
in  the  particular  act  the  authority  was  abused.^^ 

§  660.  In  actions  to  determine  conflicting  claims  to 
REAL  property.  Iu  California,  where  an  action  is  brought 
by  a  person  out  of  possession  of  real  property,  to  deter- 
mine an  adverse  claim  of  an  interest  or  estate  therein, 
the  person  making  such  adverse  claim  and  persons  in 
possession  may  be  joined  as  defendants,  and  if  the  judg- 

sWalbrecht  v.  Holbrook,  66  W.  i2Barwick  v.  Ena;lish  Joint  S^ock 

Va.  296,  299,  66  S.  E.  335,  336.  Bank,  L.  R.  2  Ex.  259.  12  Erg    Rul. 

9  Blanc  V.   Paymaster   Min.   Co.,      Gas.  298. 

95  Cal.  524,  29  Am.  St.   Rep.  149,  See,  also,  American  and  Ensilsh 

30  pac.  765.  authorities   in   notes   12    Eng.    RjI. 

10  Pfister  V.  Doscey,  68  Cal.  572,      Gas.  306-309. 

10  Pac.  117.  i3Bayley  v.  Manchester,  S.  &  L, 

11  Crane  v.  Hirschfelder,  17  Cal.  R.  Co.,  L.  R.  8  C.  P.  148,  25  Eng. 
467.  Rul.  Gas.  115. 

889 


§  661  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

ment  be  for  the  plaintiff,  lie  may  have  a  writ  for  the 
possession  of  the  premises,  as  against  the  defendants  in 
the  action,  against  whom  the  judgment  has  passed.^  A 
complaint  averring  that  the  plaintiff  is  the  owner  in  fee 
of  the  property  described,  while  merely  an  allegation  of 
an  ultimate  fact,  is  sufficient  without  alleging  the  facts 
upon  which  the  claim  to  such  title  is  founded.-  Where 
the  plaintiff  is  in  possession  at  the  time  the  action  is 
brought  to  determine  the  conflicting  claims  to  the  title 
of  the  land,  the  action  is  one  on  the  equity  side  of  the 
court,  and  the  fact  that  the  plaintiff  is  dispossessed  under 
a  writ  of  restitution  will  not  change  the  nature  of  the 
action  to  one  in  ejectment  by  reason  of  a  judgment  or 
decree  in  favor  of  the  plaintiff  awarding  restitution.^  In 
a  proceeding  under  the  McEnemey  Act  to  determine 
conflicting  claims  to  real  property,  a  person  not  made  a 
party  defendant  to  the  proceedings  is  not  bound  by  the 
judgment;^  such  person  is  not  bound  to  inject  himself 
into  the  proceedings.^ 

Tenant  in  possession  of  the  land  at  the  time  of  the 
commencement  of  an  action  to  determine  conflicting 
claims  thereto,  the  landlord  may  be  joined  as  a  party  de- 
fendant.*^ 

§  661.  Infringement  of  patents.  In  an  action  at  law 
for  the  infringement  of  a  patent  all  the  persons  who 
were  engaged  in  any  of  the  acts  constituting  the  infringe- 

1  Kerr's     Cyc.     Cal.     Code     Civ.  Heeser  v.   Miller,   77  Cal.   192,   19 

Proc,  §  380.  Pac.    375;    Souter   v.    Maguire,    78 

i:  Bryan  v.  Tormey,  3  Cal.  Unrep.  Cal.  543,  21  Pac.  183. 
85,    21    Pac.    725.      See    Payne    v.  3  Polock  v.  Gurnee,  66  Cal.  263, 

Treadwell,  16  Cal.  242;  Garwood  v.  269,  5  Pac.  229,  610;  Kitts  v.  Aiis- 

Hastings,    38    Cal.    217;    Ferrer  v.  tin,  83  Cal.  167,  172,  23  Pac.  290. 
Home   Mut.  Ins.  Co.,  47  Cal.   416,  4  Holmes  v.  O'Brien,  28  Cal.  App. 

431;    Miller   v.    Brigham,    50    Cal.  264,  151  Pac.  1151. 
615;    Rough   v.    Simmons,    65   Cal.  5  Id. 

227,     3    Pac.    804;     Thompson    v.  6  Kerr's  '  Cyc.     Cal.     Code     Civ. 

Spray,  72  Cal.  528,  534,  14  Pac.  182;  Proc,  §  379. 

890 


ell.  v.]  INFRINGEMENT  SUITS — INJUNCTION.  §  662 

ment, — e.  g.,  the  manufacture^  or  the  marketing  or  selling 
of  the  infringing  article,-  or  a  person  in  control  of  a 
corporation  who  commanded  a  subordinate  to  engage  in 
the  manufacture  and  sale  of  the  infringing  article,^ — are 
all  liable^  and  may  be  joined  as  defendants.  But  it  seems 
that  an  action  can  not  be  maintained  at  law  against  the 
directors,  stockholders  or  workmen  of  a  corporation 
wliich  manufactures  an  article  that  infringes  a  patented 
improvement.^ 

In  suits  in  equity  all  persons  engaged  in  and  concerned 
in  the  infringement  in  any  manner,  are  proper  defend- 
ants. Thus,  where  one  person  operates  or  runs  an  in- 
fringing machine,  which  is  owned  by  two  other  persons, 
all  are  properly  joined  as  defendants  in  an  injunction 
suit,^  privity  or  connection  between  the  parties  render- 
ing them  jointly  liable.^ 

<^  662.  Injunction.  In  an  action  to  enjoin  the  issuance 
of  bonds  by  fund  commissioners,  it  is  necessary  that  some 
of  the  parties  to  whom  bonds  are  to  be  issued  should  be 
parties  defendant.^  In  a  bill  of  peace  to  restrain  vexa- 
tious litigation,  although  some  of  the  parties  be  mere 
accommodation  grantees,  they  have  a  right  to  be  first 
heard  at  law  in  their  own  defense;-  but  in  an  action  to 

1  Byrer  v.  Dorr,  3  McL.  582,  Fed.  6  Woodworth  v.  Edwards,  3 
Cas.  No.  2070.                                             Woodb.   &   M.   120,   Fed.  Cas.   No. 

2  Morse  v.  Davis,  5  Blatchf.  40,      1S014. 

Fed.  Cas.  No.  9855.  ^  ^.^Ug  ^    Jacques,  1  Ban.  &  A. 


3  National  Cash-Register  Co.  v. 
Leland,  37  C.  C.  A.  372,  94  Fed.  502. 

•i  National  Car  Brake  Shoe  Co.  v. 
Terre  Haute  Car  &  Mfg.  Co.,  19 
?'ed.  514;  Harrington  v.  Atlantic  & 
Pac.  Tel.  Co.,  143  Fed.  329. 

•".  United  Nickel  Co.  v.  Worthing- 
ton,  13  Fed.  392;  Cazier  V.  Mackie-  i  Hutchinson    v.    Burr,    12    Cal. 

Lovcloy  Mfg.  Co.,  71  C.  C.  A.  104,      103;  Patterson  v.  Yuba  County,  12 
138  Fed.  654;  affirmed,  84  C.  C.  A.      Cal.  05. 
591,  157  Fed.  88.  2  Knowles  v.  Inches,  12  Cal.  212. 

891 


60,  Fed.  Cas.  17398;  Jackson  v. 
Nagle,  47  Fed.  703;  Standard  Paint 
Co.  V.  Bird,  65  Fed.  509.  See 
Reynolds  v.  Standard  Paint  Co.,  15 
C.  C.  A.  51G,  28  U.  S.  App.  457,  68 
Fed.  483. 


§§663,664  CODE  PLEADING   AND   PRACTICE.  [Pt.  Ill, 

quiet  title,^  tlie  court  may  rejoin  the  defendant,  and  all 
claiming  under  him,  from  asserting  title  to  the  property.* 
Where  one  of  the  defendants  in  a  joint  judgment  sues  to 
have  the  judgment  perpetually  enjoined,  his  codefendants 
should  be  made  parties  to  the  action.^ 

§  663.  Injury  or  death — Of  minor  child  or  ward.  We 
have  already  seen  that  a  father,  in  case  of  his  death  or 
desertion  of  his  family,  the  mother,  may  maintain  an 
action  for  the  injury  or  death  of  a  minor  child,  and  a 
guardian  for  the  injury  or  death  of  his  ward,  when  such 
injury  or  death  is  caused  by  the  wrongful  act  or  neglect 
of  another.^  Such  action  may  be  maintained  against  the 
person  causing  the  injury,  or  death,  or  if  such  person 
be  employed  by  another  person  who  is  responsible  for 
his  conduct,  also  against  such  other  person. ^  Similar 
provisions  are  found  in  the  procedural  codes  of  other 
states.  Thus  a  landlord  who  leaves  a  cistern  unguarded 
is  liable  for  the  death  of  a  child  under  three  years  of  age 
falling  into  such  cistern  ;2  and  an  agent  in  charge  of 
property  upon  which  such  a  nuisance  is  permitted  is  also 
liable  for  an  injury  or  death  to  a  child  resulting  there- 
from.* 

/ 

§  664.    Of  person  not  a  minor.    We  have  already 

seen  that  a  person  not  a  minor  may  maintain  an  action 
for  injuries  to  his  person  or  personal  injury  through  a 
negligent  or  wrongful  act,^  and  where  death  results  from 
such  personal  injury,  his  heirs  or  personal  representa- 
tives may  maintain  an  action  for  damages  against  the 
person  causing  the  death,  or  if  such  person  be  employed 

3  As  to  actions  to  determine  con-  2  Kerr's     Cyc.     Cal.     Code     Civ. 

feting    claims    to    real    property,      Proc,  §  376. 

see,  ante,  §  660.  "  Douk  Bros.  Coal  &  Coke  Co.  v. 

Leavitt,  109  111.  390. 


4  Brooks  V.  Calderwood,  34  Cal 
566. 


■i  See   instance  of  agent's   liabil- 
ity,   and    liability    of    persons    in 
5  Gates  V.  Love,  44  Cal.  392.  charge,  given  in  next  section. 

1  See,  supra,  §  625.  i  See,  ante,  §  621. 

892 


eh.  v.] 


INJURY  OR   DEATH  OF  ADULT. 


§66i 


by  another  person  who  is  responsible  for  his  conduct, 
then  also  against  such  other  person.-  In  other  jurisdic- 
tions having  the  reformed  system  of  judicature  similar 
pro\dsions  are  found.  Under  such  statutes  every  person 
responsible  for  the  negligent  or  wrongful  act  and  con- 
tributing to  the  injury  is  responsible  therefor  and  may 
all  be  joined  as  defendants."  Thus,  an  agent  or  servant 
having  complete  management  and  control  of  the  business 
or  property,  is  liable  with  his  principal  or  master;*  an 
agent  in  charge  who  fails  to  make  necessary  repairs;^ 
car  inspector  guilty  of  gross  or  wanton  negligence  in  in- 
spection;^  engineer  of  railway  train  for  negligent  or 


2  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  377. 

3  Mayer  v.  Thompson-Hutchison 
Bldg.  Co.,  104  Ala.  622,  53  Am.  St. 
Rep.  88,  28  L.  R.  A.  436,  16  So. 
620;  Dowell  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  83  Kan.  566,  112  Pac.  136; 
Lough  V.  Davis,  30  Wash.  204,  94 
Am.  St.  Rep.  848,  59  L.  R.  A.  802, 
70  Pac.  491;  Howe  v.  Northern 
Pac.  R.  Co.,  30  Wash.  574,  60 
L.  R.  A.  953,  70  Pac.  1100;  Lytle 
Logging  &  Mercantile  Co.  v. 
Humptulips  Driving  Co.,  60  Wash. 
562,  111  Pac.  774;  Thomas  v.  Great 
Northern  R.  Co.,  77  C.  C.  A.  255, 
147  Fed.  85. 

4  Mayer  v.  Thompson-Hutchison 
Bldg.  Co.,  104  Ala.  611,  622,  53 
Am.  St,  Rep.  88,  28  L.  R.  A.  433, 
16  So.  620;  Stiewel  v.  Borman,  63 
Ark.  37,  37  S.  W.  404;  Baird  v. 
Shipman,  132  111.  16,  22  Am.  St. 
Rep.  504,  7  L.  R.  A.  128,  23  N.  E. 
384;  Ranch  v.  Brunswig,  155  Mo. 
App.  371,  137  S.  W.  67;  Young  v. 
Rohrbough,  88  Neb.  106,  129  S.  W. 
167;  Ellis  v.  Southern  R.  Co.,  72 
S.  C.  471,  2  L.  R.  A.  (N.  S.)  382, 
52  S.  E.  228. 

Agent  for  owner  of  unoccupied 


land  not  liable  to  a  trespass  for 
the  unsafe  condition  of  the  land, 
where  his  authority  limited  to 
leasing  the  land  and  collecting  the 
rent. — Kuhnert  v.  Angell,  10  N.  D. 
61,  88  Am.  St.  Rep.  675,  84  N.  W. 
579. 

Agent  not  liable  merely  because 
he  is  such  agent,  but  must  be  so 
connected  witla  the  tortious  act 
that  he  would  be  liable  for  his  neg- 
ligent or  wilful  act  without  regard 
to  the  liability  of  his  master  or 
employer. — Eraser  v.  Baker,  137 
111.  App.  594. 

Hirer  of  elevator-boy  for  owner 
of  building  over  which  the  hirer 
had  control,  not  liable  for  the  neg- 
ligence of  such  elevator-boy.  — 
Smith  v.  Pawlak,  136  111.  App.  279. 

5  Gibson  v.  Leonard,  37  111.  App. 
348;  Chicago  Consolidated  Bottling 
Co.  V.  Mitton,  41  111.  App.  156; 
Lough  V.  Davis,  30  Wash.  204,  213. 
94  Am.  St.  Rep.  848,  59  L.  R.  A. 
802,  70  Pac.  491. 

Compare:  Kuhnert  v.  Angell,  10 
N.  D.  61,  88  Am.  St.  Rep.  675,  84 
N.  W.  579. 

6  Ward  V.  Pullman  Car  Corp., 
131   Ky.   149,   25   L.   R.   A.    (N.   S.) 


893 


§665 


CODE  PLEADING  AND  PRACTICE, 


[Pt.  Ill, 


wanton  injury  to  trackmen ;'  superintendent  of  mine  i)er- 
mitting  use  of  a  defective  shaft  ;**  trustee  having  control 
of  building  is  liable  for  negligence  in  the  maintenance 
and  operation  of  an  elevator  in  the  building,  and  for  the 
negligence  of  the  elevator  man,**  and  the  like. 

§  665.  Injury  to  PROPEPtTY  caused  by  negligent  or 
WRONGFUL  ACT.  In  the  case  of  an  injury  to  property 
caused  by  the  negligent  or  w^rongful  act  of  another,  all 
persons  participating  in  or  contributing  to  such  negli- 
gent or  wrongful  act  are  liable  for  the  damages  occa- 
sioned thereby,  and  may  all  be  joined  as  defendants.^ 
Thus,  in  an  action  to  recover  for  damage  done  to  the 
property  of  the  plaintiff  by  reason  of  the  breaking  away 
of  a  dam  built  by  contractors,  when  the  employers  exer- 
cise no  supervision,  give  no  directions,  furnish  no  ma- 
terials, and  have  not  accepted  the  work,  the  contractors 
alone  are  liable;-  after  the  acceptance  of  the  work,  the 


351,  114  L.  W.  754;  Jacobson  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  176  Fed. 
1007. 

7  Dowell  V.  Chicago,  R.  I.  &  P. 
R.  Co.,  83  Kan.  566,  112  Pac.  136. 

s  Hagerty  v.  Montana  Ore  Pur- 
chasing Co.,  38  Mont.  81,  25  L.  R.  A. 
(X.  S.)  361,  98  Pac.  643. 

'■<  Orcutt  V.  Century  Bldg.  Co., 
201  Mo.  450,  8  L.  R.  A.  (N.  S.)  937, 
C9  S.  W.  1062. 

1  See,  post,  §§  674,  701. 

2  See:  ALA. — Myers  v.  Hobbs, 
57  Ala.  175,  29  Am.  Rep.  719.  CAL. 
— Boswell  V.  Laird,  8  Cal.  469,  68 
Am.  Dec.  345;  Du  Pratt  v.  Lick,  38 
Cal.  691;  O'Hale  v.  Sacramento, 
City  of,  48  Cal.  212;  Bennett  v. 
Truebody,  66  Cal.  509,  56  Am.  Rep. 
117,  6  Pac.  329.  ILL.— Baird  v. 
Shipman,  132  111.  16,  22  Am.  St. 
Rep.  504,  7  L.  R.  A.  128,  23  N.  E. 
384.  IND.— Ryan  v.  Curran,  64 
Ind.  345,  31  Am.  Rep.  123;  Wabash, 


89 


St.  L.  &  Pac.  R.  Co.  V.  Faver,  111 
Ind.  195,  60  Am.  Rep.  696,  12  N.  E. 
296.  ME.— Eaton  v.  European  & 
N.  R.  Co.,  59  Me.  520,  8  Am.  Rep. 
430.  MICH.— Gilbert  v.  Flint  &  P. 
M.  R.  Co.,  51  Mich.  488,  47  Am. 
Rep.  592.  MO. — Fink  v.  Missouri 
Furnace  Co.,  82  Mo.  276,  52  Am. 
Dec.  376.  N.  J.— Cuff  v.  Newark  & 
N.  Y.  R.  Co.,  35  N.  J.  L.  (6  Vr.) 
17,  10  Am.  Rep.  205;  affirmed,  36 
N.  J.  L.  (1  Vr.)  574.  N.  Y.— King 
V.  New  York  Cent.  &  H.  River  R. 
Co.,  66  N.  Y.  181,  23  Am.  Rep.  37; 
Ferguson  v.  Hubbell,  97  N.  Y.  507, 
49  Am.  Rep.  544;  Hexamer  v. 
Webb,  101  N.  Y.  377,  54  Am.  Rep. 
703.  OHIO— Hughes  v.  Cincinnati 
&  S.  R.  Co.,  39  Ohio  St.  461.  PA.— 
Harrison  v.  Collins,  86  Pa.  St.  153, 
27  Am.  Rep.  699;  School  District  v. 
Fuess,  98  Pa.  St.  600,  42  Am.  Rep. 
627;  Smith  v.  Simmons,  103  Pa. 
St.  32,  49  Am.  Rep.  113;  Piollet  v. 
1 


Ch.  v.]  INTERPLEADER CONFLICTING  CLAIMS.  §  66& 

owner  is  also  liable  for  damage  resulting  from  faulty 
construction.^  An  agent  of  a  contractor  ha^'ing  control 
of  the  business  is  liable  with  his  principal,^  or  an  agent 
having  the  control  and  management  of  the  property  may 
be  liable  to  a  third  person  for  a  personal  injury  or  an 
injury  to  his  property  resulting  from  a  negligent  or 
wrongful  act  in  connection  with  such  management  of  the 
property,^ — because  one  in  control  of  premises  is  liable 
for  known  defects  therein,  or  for  those  which  he  might 
have  knowTi  of  by  the  exercise  of  reasonable  care.*''  But 
a  director  who  has  no  knowledge  of  a  nuisance  main- 
tained by  a  corporation,  and  could  not  know  of  the  exist- 
ence of  such  nuisance  by  the  exercise  of  ordinary  dili- 
gence as  such  director,  is  not  personally  responsible  with 
the  corporation  for  the  maintenance  of  such  nuisance.' 
Common  carriers,  for  loss  of  goods  consigned  to  them  for 
transportation  and  delivery,  may  be  sued  jointly  or  sever- 
ally,^ where  the  contract  of  carriage  is  for  a  through  car- 
riage and  delivery  beyond  the  end  of  the  line  of  the  initial 
carrier;  but  such  extended  liability  of  the  initial  carrier 
must  be  clearly  established  by  satisfactory  evidence.'^ 

§  666.    Interpleader  —  Conflicting    claimants.     The 
California  procedural  code  provides  that  whenever  con- 

Simmers,   106   Pa.   St.  95,   51   Am.  6  Chicago  Consol.  Bottling  Co.  v. 

Rep.  496.     VT.— Bailey  v.  Troy  &  Mitton,  41  111.  App.  156. 

B.  R.  Co.,  57  Vt.  252,  52  Am.  Rep.  7  Cameron    v.    Kenyon  -  Connell 

^^^-  Commercial  Co.,  22  Mont.  312.  320. 

3  Boswell  V.  Laird,  8  Cal.  469,  68  ^4  ^m.  St.   Rep.   602,   44   L.   R.   A. 
Am.  Dec.  345;  Fonjoy  v.  Seales,  29  602,  56  Pac.  358. 

Cal    249 

4  See  Mayer  v.  Thompson-Hutch-  '^  ^^^^^^  ^-  «°^^«°'  ^O  N-  Y.  93 : 
ison  Bldg.  Co.,  104  Ala.  622,  53  Am.  Mcintosh  y.  Ensign.  28  N.  Y.  169. 
St.  Rep.  88,  28  L.  R.  A.  436,  16  So.  ^  See  Roy  v.  Chesapeake  &  O.  R. 
620.  Co.,    61   W.   Va.    616,   31    L.    R.    A. 

See  authorities  cited,  ante,  §  664,  (N.  S.)  1,  57  S.  E.  39. 

footnote  4.  As  to  liability  of  connecting  car- 

5  Ranch    v.    Brunswig,    155    Mo.  rier  for  loss  beyond  its  own  line, 
App.  371,  137  S.  W.  67.  see    exhaustive    collection    of    au- 

See,  also,  authorities  cited,  ante,      thorities  in  note  31  L.  R.  A.  (N.  S.) 
§  664,  footnote  5.  1-113. 

895 


§666  CODE   PLEADING   AND   PRACTICE.  [Pt.  IlJ, 

flicting  claims  are  or  may  be  made  upon  a  person  for  or 
relating  to  personal  property,  or  the  performance  of 
an  obligation,  or  any  portion  thereof,  such  person  may 
bring  an  action  against  the  conflicting  claimants  to  com- 
pel them  to  interplead  and  litigate  their  several  claims 
among  themselves.^  There  are  similar  provisions  found 
in  other  jurisdictions  having  the  reformed  procedure. 
One  of  the  essential  requisites  to  equitable  relief  by  bill 
of  interpleader  is  that  all  the  adverse  titles  of  the  re- 
spective chdmants  must  be  connected  or  dependent,  or 
one  derived  from  the  other,  or  from  a  common  source. 
There  must  be  privity  of  some  sort  between  all  the  par- 
ties, such  as  privity  of  estate,  title,  or  contract,  and  the 
claims  should  be  of  the  same  nature  and  character.  In 
cases  of  adverse,  independent  titles  or  demands,  actions 
to  determine  the  rights  of  litigants  must  be  directed 
against  the  party  holding  the  property,  and  he  must  de- 
fend, as  best  he  can,  at  law.  Thus,  where  the  ('  \'  rela- 
tion which  the  plaintiff  sustains  to  the  defendants  is  that 
he  is  the  debtor  of  one  of  them,  he  can  not  invoke  the  aid 
of  an  interpleader ;-  or  where  no  privity  exists  .ctween 
defendants,  their  claims  being  based  on  independent  con- 
tracts with  the  plaintiff.^  In  those  cases  in  which  it  is 
desired  that  a  new  party  be  impleaded,  this  should  be 
done  by  motion  in  the  trial  court.  An  objection  to  the 
proceedings  as  not  including  such  party,  based  upon  the 

1  Kerr's     Cyc.     Cal.     Code     Civ.  parties  and  striking  out  parties.— 

Proc,  §  386.  See  Wheatley  V.  Strobe,  See  Id.,  p.  224,  Forms  Nos.  141,  142. 

12  Cal.  92,  73  Am.  Dec.  561;  Maier  2  North  Pacific  L.  Co.  v.  Lang,  28 

V.  Freeman,  112  Cal.  8,  53  Am.  St.  Ore.  246,  258,  52  Am.  St.  Rep.  780, 

Rep.  151,  44  Pac.  357.  42  Pac.  799,  803. 

As   to    privity   of  title   between  3  See   Sachsel  v.  Farrar,  35   111. 

claimants  in  interpleader,  see  note  App.  277;  Hoyt  v.  Gauge,  125  Iowa 

1  Ann.  Gas.  513.  603,    101    N.   W.    464;    Maxwell    v. 

Form     of     complaint     in     inter-  Frazier,   52   Ore.   183,   18    L.   R.  A. 

pleader.      See   Jury's    Adjudicated  (N.  S.)  102,  96  Pac.  548. 

Forms   of   Pleading   and    Practice,  As    to    privity    of   title    between 

vol.  1,  p.  223,  Form  No.  140.  claimants-  in    interpleader,    see    1 

— Amendment  by  adding  new  Ann.  Cas.  513. 

89G 


Ch.  v.]  INTERVENTION — CALIFORNIA  RULE.  §  667 

contention  that  lie  is  a  proper  party  to  prosecute  the  suit, 
comes  too  late  when  made  for  the  first  time  on  appeal.* 

§  667.  Intervention — In  general.  The  California  pro- 
cedural code  provides  that  at  any  time  before  trial,  any 
I)erson,  who  has  an  interest  in  the  matter  in  litigation,  or 
in  the  success  of  either  of  the  parties,  or  an  interest 
against  both,  may  intervene  in  the  action  or  proceeding.^ 
The  right  of  intervention  is  purely  statutory,-  and  the 
method  prescribed  in  the  statute  must  be  strictly  fol- 
lowed.^ A  substitution  of  parties*  is  not  intervention,'"' 
and  where  the  trial  court,  on  the  erroneous  supposition 
that  they  are  necessary  parties,^  orders  that  certain  per- 
sons be  permitted  to  appear  and  answer,^  such  persons 
are  not  interveners,  and  do  not  become  parties  to  the 
action.^  The  right  of  a  person  coming  within  the  descrip- 
tion of  the  statute  to  intervene  is  an  absolute  right,  and 
the  fact  that  he  may  or  may  not  protect  his  interests  in 
some  other  way  is  not  material.  If  he  has  an  interest  in 
tlie  matter  in  litigation,  or  in  the  success  of  either  of  the 
parties,  he  has  a  right  to  intervene.'-^     Thus,  it  has  been 

4  Chapman  &  Dewey  Land  Co.  v.  3  Chase  v.  Evoy,  58  Cal.  348,  355. 

Wilson,  91  Ark.  30,  120  S.  W.  391.  ■*  As   to  substitution    of   parties, 

1  Kerr's     Cyc.     Cal.     Code     Civ.      ^^e,  post,  §§  694-699. 

5  Temple  v.  Alexander,  53  Cal.  3. 


Proc,  2d  ed.,   §387;    Consolidated 
Supp.  1906-1913,  p.  1418. 


6  As  to  who  are  necessary   par- 
ties, see,  ante,  §§  637-639. 
2  Chase  v.  Evoy,  58  Cal.  348,  355.  ^  ^g  ^^  bringing  in  new  parties. 

In    Texas,    intervention    is    not      see,  ante,  §§  647-650. 
based   upon   a  declaration   of   the  s  Chase  v.  Evoy,  58  Cal.  348,  355. 

statute,  but  is  derived  through  the      See  Elliott  v.  Superior  Court,  168 
ecclesiastical    courts    of    England      Cal.  727,  145  Pac.  101. 
and  the  modification  of  the  civil  9  Coffey    v.    Greenfield,    55    Cal. 

law  as  found  in  the  State  of  Louis-  382;  Kimball  v.  Richardson-Kim- 
iana,  and  rests  upon  the  principle  ball  Co.,  Ill  Cal.  386,  43  Pac.  1111; 
that  a  party  should  be  permitted  Dennis  v.  Kohn,  131  Cal.  91,  63 
to  do  that  voluntarily  which,  if  Pac.  141;  Potlatch  Lumber  Co.  v. 
known,  a  court  of  equity  would  Runkel,  16  Idaho  192,  23  L.  R.  A. 
require  to  be  done.— Whitman  v.  (N.  S.)  536,  101  Pac.  396;  Taylor 
Willis,  51  Tex.  425;  Pool  v.  San-  v.  Bank  of  Volga,  9  S.  D.  572,  70 
ford,  52  Tex.  621,  633.  N.  W.  834. 

I  Code  PI.  and  Pr.— 57  gQY 


§  668  CODE  PLEADING  AND  PRACTICE.  [Pt.  III. 

said  that  where  a  telegraph  company  seeks  to  obtain 
leave  to  construct  a  telegraph  line  along  the  right  of  way 
of  a  railroad  company,  and  such  railroad  company  is  in 
the  hands  of  a  receiver,  the  telegraph  company  may  inter- 
vene in  the  receivership  and  litigate  its  right.^'^  But 
intervention,  as  a  general  rule,  will  not  be  allowed  in 
those  instances  in  which  it  would  retard  the  principal 
suit,  or  where  it  would  require  a  reopening  of  the  case, 
delay  the  trial  of  the  cause,  or  change  the  position  of  the 
original  parties. ^^ 

Trustee  under  an  express  trust  may  intervene  in  his 
own  name  without  joining  the  person  for  whose  benefit 
the  intervention  is  prosecuted. ^^ 

§  668.    Actions    in    which    authorized.     In    an 

action  for  trespass  upon  land,  a  person  who  claims  a 
grant  of  a  right  of  way  through  the  land,  and  avers  that 
the  acts  of  trespass  complained  of  were  performed  by  the 
defendant  under  an  employment  by  him  to  construct  the 
way,  has  a  right  to  intervene  in  the  action.^  An  interest 
entitling  a  person  to  intervene  in  an  action  at  law  or  a 
suit  in  equity  must  be  in  the  particular  matter  in  litiga- 
tion, and  must  also  be  of  such  a  direct  and  immediate 
character  that  he  will  either  gain  or  lose  by  the  direct 
legal  effect  and  operation  of  any  judgment  that  may  be 
rendered  in  the  action.-  Thus,  in  an  action  to  enforce  a 
trust  in  property  that  has  been  sold  under  foreclosure 

10  Union  Trust  Co.  v.  Atchison,  In  Texas,  intervention  is  permit- 

T.  &  S.  F.  R.  Co.,  8  N.  M.  327,  43  ted  in  suits  for  real  or  personal 

Pac.  701.  property. — Field  v.  Gantier,  8  Te.x. 

u  Hibernia  Sav.  &  L.  Soc.  v.  74;  Eccles  v.  Hill,  13  Tex.  65;  Bur- 
Churchill,  128  Cal.  633,  79  Am.  St.  ditt  v.  Glasscock,  25  Tex.  Supp. 
Rep.  73,  61  Pac.  278.  45;    Smith  v.  Allen,  28  Tex.   497; 

12  Burke  v.  Sharp,  88  Ark.  433,  Smalley   v.    Taylor.    33    Tex.    668; 

115  S.  ^Y.  145.  Mussina   v.    Goldthwaite,    34    Tex. 

As    to    trustees    generally,    see,  125,  7  Am.  Rep.  281;   Whitman  v. 

post,  §703.  Willis,  51  Tex.  421;    Pool  v.   San- 

1  Robinson  v.  Crescent  City  Mill  ford,  52  Tex.  621,  634. 

&  Transp.  Co.,  93  Cal.  316,  28  Pac.  i'  Horn  v.  Volcano  Water  Co.,  13 

950.  Cal.  62,  73  Am.  Dec.  569, 

898 


Ch,  v.]  GROUNDS  AND  TIME  OF  INTERVENTION.  §  669 

proceedings  against  the  defendant,  a  purcliaser  of  the 
land  or  any  portion  thereof  at  the  foreclosure  sale  may 
intervene  in  the  action.^  Where  the  owner  of  a  olaim 
assigns  it  absolutely,  retaining  an  interest  in  the  proceeds 
thereof,  he  may  intervene  in  an  action  by  his  assignee 
to  collect  the  same.''  But  a  person  may  not  intervene 
for  the  purpose  of  setting  up  an  adverse  claim  of  title 
to  a  part  of  the  property  as  against  the  mortgagor  and 
mortgagee  in  a  foreclosure  proceeding.^ 

§  669.    Grounds  for  and  time  of  intervention. 

The  grounds  of  intervention  is  a  personal  interest  in  the 
subject-matter  of  the  action,  either  on  the  side  of  the 
plaintiff  or  on  the  side  of  the  defendant,^  and  if  there  be 
no  such  interest  there  is  no  ground  for  intervening  in 
the  action.2  Thus,  a  person  claiming  an  adverse  appro- 
priation of  a  right  to  the  flow  of  water  as  against  a  lower 
riparian  proprietor,  has  no  interest  in  an  action  against 
such  lower  proprietor  by  another  upper  riparian  pro- 
prietor to  condemn  the  right  to  the  flow^  of  the  water  of 
the  lower  proprietor,  his  own  right  to  the  flow  of  water 
not  being  in  any  way  interfered  with  by  any  judgment 
that  may  be  rendered  in  the  proceeding,  and  for  that 
reason  he  can  not  intervene  in  the  action." 

Timely  application  for  an  order  permitting  a  party 
interested  with  the  plaintiff  in  an  action,  or  with  the  de- 
fendant, or  having  interests  antagonistic  to  both,  must 
be  made.  If  a  party  having  such  an  interest  in  tlie  action 
fails  to  intervene  therein  he  will  be  bound  by  any  judg- 
ment that  may  be  rendered  on  disposing  of  the  cause  ;^ 

3  Coffey  V.  Greenfield,  55  Cal.  v.  Superior  Court,  1G8  Cal.  727,  145 
382.  Pac.  101. 

4  Gradwohl  v.  Harris,  29  Cal.  2  Moran  v.  Bonynge,  157  Cal. 
150.  295,  298,  107  Pac.  312. 

5  Peachy  v.  Witter,  131  Cal.  316,  3  San  Joaquin  &  Kings  River  C. 
63  Pac.  468.  &  Irr.  Co.  v.  Stevenson,   164   Cal. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.      221,  128  Pac.  924. 
Proc,  2d  ed.,  p.  387;   Consolidated  4  Gradwohl    v.    Harris,    29    Cal. 

Supp.  1906-1913,  p.  1418.  See  Elliott      150. 

899 


§  670  CODE  PLEADING   AND   PRACTICE.  [Pt.  Ill, 

he  can  not  sit  idly  by  until  the  controversy  before  the 
court  has  been  determined  and  disposed  of,  and  then 
compel  a  retrial  because  the  judgment  has  gone  against 
his  interests.^  The  intervention  must  take  place  before 
the  trial  of  the  cause  f  there  can  be  no  intervention  after 
the  cause  has  been  submitted  on  bill  and  answer  thereto.'^ 

§  670.  Application  foe  leave  to  intervene  :  Pro- 
ceedings ON.  An  application  for  intervention  must  be 
made  by  a  complaint^  setting  forth  the  grounds  upon 
which  the  intervention  rests,  filed  by  leave  of  the  court 
and  served  upon  the  parties  to  the  action  or  proceeding 
who  have  not  appeared,  and  upon  the  attorneys  of  the 
parties  who  have  appeared,-  who  may  answer  or  demur 
thereto  as  in  the  case  of  an  original  complaint  in  an 
action.^  The  complaint  and  other  pleadings  on  an  appli- 
cation for  leave  to  intervene  are  governed  by  the  general 
rules  of  pleading.^  The  complaint  in  intervention  must 
state  in  a  clear  and  concise  manner  the  facts  constituting 
the  grounds  of  intervention,  and  must  show  on  its  face 
that  the  party  seeking  to  intervene  is  entitled  to  do  so  f 
and  if  it  does  not  make  such  showing  on  its  face  a  de- 
murrer thereto  will  be  sustained.^  Thus,  a  person  seek- 
ing to  intervene  in  an  ejectment  proceeding,  must  allege 
in  his  complaint  that  he  had  title  before  the  commence- 

5  Mack  V.  Emmelen,  31  Cal.  App.  cation  for  intervention,  see  Jury's 

506,  160  Pac.  1096.  Adjudicated     Forms    of     Pleading 

c  See  Hibernia  Sav.  &  L.  Soc.  v.  and  Practice,  vol.  1,  p.  213,  Form 

Churchill,  128  Cal.  633,  79  Am.  St.  No.  121. 

Rep.  73,  61  Pac.  278;   Meadows  v.  2  Kerr's     Cyc.    Cal.     Code     Civ. 

Goff,   90   Ky.   540,   14    S.   W.    535;  Proc,  2d  ed.,  §382;    Consolidated 

Wiseman    v.    Eastman,    21   Wash.  Supp.  1906-1913,  p.  1418. 

163,  57  Pac.  398;   Hight  v.  Botley,  3  Id. 

32  Wash.  165,  98  Am.  St,  Rep.  851,  4  Hadsall  v.  Case,  15  Cal.  App. 

72  Pac.  1034;   Seattle  &  N.  R.  Co.  542,  115  Pac.  330. 

V.  Bowman,  53  Wash.  416,  102  Pac.  See,  also,  post,  §  672,  footnote  2. 

27.  5  Ray  v.  Butler,  69  Cal.  572,  584, 

7  Seligman  v.  Santa  Rosa,  City  11  Pac.  463. 

of   81  Fed.  524.  6  Chidovich    v.    Krauss,    2    Cal. 

1  Form  of  complaint  in  an  appli-  Unrep.  700,  11  Pac.  781. 

900 


ell.  v.]  RIGHTS  AND  LIABILITIES  OF  INTERVENERS.  §  671 

ment  of  the  suit,  or  the  complaint  will  be  insufficient ;'  it 
is  not  sufficient  merely  to  allege  that  he  **is  tlie  owner 
and  entitled  to  the  possession,"  and  so  forth.^ 

Order  granting  or  refusing  leave  to  intervene  may  be 
made  by  the  trial  court,  according  to  the  merits  of  the 
case  made  on.  the  application,"  and  this  is  properly  done 
by  an  ex  parte  order. ^°  An  appeal  may  be  taken  from 
an  order  refusing  to  allow  an  intervention.^^ 

<^  671.    Rights  and  liability  of  interveners.   An 

intervener,  after  an  order  of  the  trial  court  granting  the 
right  to  intervene,  has  all  the  rights  of  an  original  party 
to  an  action, — becomes  an  actor  in  the  proceeding  and 
must  set  up  and  depend  upon  his  own  riglits.^  With  the 
permission  of  the  court  he  may  amend  his  complaint  iu 
intervention  to  make  it  correspond  to  the  proof  on  tlie 
trial  of  the  cause  ;^  when  no  relief  is  prayed  against  an 
intervener,  he  may  dismiss  his  complaint  in  intervention, 
even  though  one  of  the  original  plaintiffs  in  the  suit  has 
died  and  his  successor  in  interest  has  not  been  brought 
in  f  and  the  fact  that  the  defendant  suffers  a  default 
can  not  preclude  him  from  the  relief  to  which  he  is  en- 
titled.^ When  the  cause  is  an  action  at  law  the  intervener 
is  bound  by  the  record,  but  is  not  bound  by  a  waiver  of  a 
jury  trial^  by  the  original  parties  to  the  action;*"'  where 

7  Donner  v.  Palmer,  1  Cal.  Plaintiif  denied  allegations  in 
Unrep.  392.                                                 complaint  in  intervention  and  then 

8  j^  dismissed    his    action;    defendant 

„  „  ,        -,  j„  ri  1    eno       suffered    default;    intervenor    was 

0  Spanagel  v.  Reay,  47  Cal.  608.      ^  ,  ,_       . 

found    to    have    the    interest    he 

10  Kimball  V.  Richardson  -  Kim-  claimed;  held  that  he  was  entitled 
ball  Co..  Ill  Cal.  386,  43  Pac.  1111.      ^^  ^^^   ^^j.^j   ^^^^^^^   for.-Green- 

11  Britt  V.  East  Side  Hardware  ^erg  v.  California  Bituminous 
Co.,  25  Cal.  App.  231,  143  Pac.  244.      Rock    Co.,    3    Cal.   Unrep.    883,   33 

1  Moran    v.    Bonynge,    157    Cal.      Pac.  192. 

295,  298,  107  Pac.  312.  5  Whether  entitled  to  jury  trial 

2  Ward  v.  Waterman,  85  Cal.  raised  but  not  decided  in  McNeil 
488,  24  Pac.  930.  v.  Morgan,   157  Cal.  373,  377,  108 

:j  Sheldon  v.  Gunn.  56  Cal.  582.  Pac.  69. 

I  Townsend    v.    Driver,    5    Cal.  6  McNeil  v.  Morgan,  157  Cal.  373, 

App.  581,  584,  90  Pac.  1061.  108  Pac.  69. 

901 


§  672  CODE   PLEADING   AND   PRACTICE.  [Ft.  Ill, 

the  original  proceeding  is  a  suit  in  equity  in  the  nature 
of  a  bill  of  peace  to  quiet  title  of  an  alleged  owner  of  the 
property,  who  has  been  long  in  possession,  with  no  issue 
or  question  of  recent  ouster  of  the  defendant  or  of  the 
intervener,  neither  the  defendant  nor  the  intervener,  by 
setting  up  an  adverse  claim  of  ownership  by  way  of  a 
counter-claim  in  ejectment,  can  convert  the  proceeding 
into  a  legal  action  so  as  to  entitle  them  to  a  trial  by 
jury."  An  intervener  may  appeal  from  any  judgment  in 
the  action  or  proceeding  where  he  is  in  fact  and  in  law 
an  intervener.^  Thus,  merely  filing  a  complaint  in  an 
action  setting  up  notes  of  a  corporation  a  party  to  the 
action,  and  praying  for  a  sale  of  the  corporate  property 
described  in  a  trust  deed  given  to  secure  such  notes,  does 
not  make  such  person  a  party  to  the  action,^  notwith- 
standing the  fact  that  he  styles  his  complaint  as  an  appli- 
cation for  intervention;^*'  and  not  being  a  party  to  the 
action,  he  is  not  entitled  to  appeal  from  any  order  made 
on  the  trial  of  the  cause  or  from  the  judgment  entered 
therein. ^^ 

§  672.  Proceedings  after  intervention.  The  or- 
dinary rules  of  pleading  applying  in  a  case  of  interven- 
tion,^ and  all  averment  in  answer  to  the  complaint  in 
intervention  must  be  taken  as  denied.-  The  complaint 
in  intervention,  however  styled  by  the  pleader,  must  be 
held  to  be  sufficient  where  it  sets  forth  facts  which, 
if  substantiated  by  the  proof,  would  defeat  the  plain- 
tiff's right  to  a  recovery,  and  authorize  a  recovery 
by  the  intervener.^  While  an  order  disallomng  an  inter- 
vention amounts,  in  legal  effects,  to  a  final  judgment  as 
to  the  proposed  intervener,  yet,  on  an  appeal  taken  from 

7  Id.  1  See,  ante,  §  670,  footnote  4. 

8  See,  ante,  §  667,  footnotes  4-8.  2  Parson  v.   Creed,   78   Cal.   144, 
0  See,  ante,  §  667,  footnote  8.              146,  20  Pac.  302. 

10  Elliott  V.  Superior  Court,  168  3  Joshua  Hendy  Machine  Works 
Cal.  727,  145  Pac.  101.                             v.  Dillon,  135  Cal.  9,  66  Pac.  960. 

11  Id. 

902 


Ch.  v.]  JOINT  TORT-FEASORS.  §§  673, 674 

such  order,  the  record  on  such  appeal  must  be  authenti- 
cated by  a  bill  of  exceptions  containing  all  the  papers 
and  documents  used  in  the  application  upon  which  the 
court  acted  in  making  the  order  complained  of.^ 

§  673.  Joint  tenants.  We  have  already  seen  that  any 
one  or  more  of  joint  tenants  may  sue  for  the  enforce- 
ment or  protection  of  the  rights  of  such  party  or  parties  ;^ 
likewise  any  one  or  more  may  defend  for  the  protection 
of  his  or  their  interests. - 

<^  674.  Joint  tort-feasors.^  The  general  rule  of  law  is 
that  an  injured  person  has  his  right  of  action  for  dam- 
ages against  each  and  all  of  the  joint  tort-feasors  con- 
tributing to  such  injury,  and  may,  at  his  election,  sue 
them  individually  or  join  them  all  as  defendants  in  one 
action,-  and  when  he  elects  to  sue  all  in  one  action  may 
properly  join  individuals  and  a  corporation  as  defend- 
ants,^ w-hether  the  individuals  are  or  are  not  the  agents 
or  servants  or  employees  of  the  corporation,-* — e.  g.,  em- 
ployees of  a  gas  company,  injured  by  frightened  horses 
falling  into  the  trench  where  they  were  working,  may 
join  the  owner  of  the  team  and  a  railroad  corporation, 

4  Britt  V.    East    Side    Hardware  3  Fallon  v.  United  Railroads,  28 

Co.,  25  Cal.  App.  231,  143  Pac.  244.  Cal.  App.  60,  151  Pac.  290;  Whalen 

1  See,  ante,  §  599.  v.  Pennsylvania  R.  Co.,  73  N.  J.  L. 

2  See  Kerr's  Cyc.  Cal.  Code  Civ.  192,  63  Atl.  993.  See  McMannus  v. 
Free,  §  384.  Lee,  43  Mo.  206,  97  Am.  Dec.  386; 

1  As    to    fraud    generally,    see,  Cooper    v.    Johnson,    81    Mo.    489; 

ante,  §  659.  Halliday  v.  .Jackson,  21  Mo.   App. 

As  to  torts  generally,  see,  post,  667. 
§  701.  4  Central   R.   Co.  v.   Brown.   113 

•-'Butler    V.    Ashworth,    110    Cal.  Ga.   414,  84   Am.  St.    Rep,   250.   38 

614,    43    Pac.    4.    386;    Grundel    v.  S.  E.  989;   Brakaw  v.  New  Jersey 

Union  Iron  Works,  127  Cal.  438,  78  R.  &  Transp.  Co.,  32  N.  J.  L.   (3 

Am.  St.  Rep.  75,  47   L.  R.  A.  467,  Vr.)    328,   90   Am.    Dec.   659.     See 

.-39  Pac.  826;  Cole  V.  Roebling  Con-  Moore    v.    Fitchburg    R.    Co.,    74 

struction  Co.,  156  Cal.  443,  105  Pac.  Mass.    (8  Gray)    465,  64  Am.   Dec. 

255  S3;    Hewett  v.  Swift,  86  Mass.   (4 

See    numerous    cases    cited    20  Allen)  420. 
R.  C.  L.,  p.  678,  footnote  7.  Orr  v.  Bank  of  United  SUtes,  1 

903 


§  674  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

alleging  that  the  defendant  corporation  negligently  oper- 
ated a  welding  machine  and  frightened  the  horses.^  And 
when  the  receivers  of  a  railroad  corporation  are  jointly 
and  severally  liable  for  a  personal  injury  caused  by  the 
negligence  of  themselves  and  another  railroad  company, 
in  an  action  to  recover  damages  for  the  injury  they  may 
be  joined  as  defendants  with  such  other  railroad  corpo- 
ration.^ This  doctrine  of  the  joinder  or  non-joinder  of 
joint  tort-feasors  as  defendants,  is  based  on  the  prin- 
ciple that  persons  who  join  in  committing  a  tort  are  sev- 
erally liable  therefor  and  can  not  set  up  as  a  defense,  to 
evade  liability  for  the  wrong  done  and  injury  inflicted, 
that  another  person,  or  other  persons,  is  liable  also; 
neither  can  one  joint  tort-feasor  require  the  person  in- 
jured by  his  wrong,  in  seeking  redress  in  damages,  to 
join  as  defendants  all  the  persons  committing  the  wrong 
and  inflicting  the  injury.'^ 

Exception  to  the  ride  above  laid  down  is  found  in  the 
case  where  the  injury  complained  of  arises  out  of  the 
ownership  of  real  property  held  jointly^  or  in  common** 
by  two  or  more  persons,  and  they  have  neglected  a  duty 
imposed  upon  them  as  the  holders  of  the  title  in  such 
real  estate;  in  which  case  they  should  all  be  joined  as 
defendants  in  an  action  by  a  person  injured  to  recover 
damages.^*'    And  this  rule  applies  also  in  the  bringing  of 

Ohio  36,  13  Am.  Dec.  588,  to  the  5  Fallon  v.  United  Railroads,  28 

contrary,  is  founded  upon  an  obso-  Cal.  App.  60,  151  Pac.  290. 

lete    doctrine    regarding    corpora-  6  Tandrup   v.    Sampsell,   234   111. 

tions,  and  while  followed  in  Foote  526,   17    L.   R.   A.    (N.   S.)    852,  85 

V.   Cincinnati,  City  of,   9  Ohio  31,  N.  E.  331. 

and    specifically   overruled    any-  7  Tandrup   v.    Sampsell,   234   111. 

where,    is    not    in    harmony    with  526,   17   L.   R.   A.    (N.   S.)    852,   85 

later  cases   in  the   same  state, —  N.  E.  331. 

e.  g.,  Atlantic  &  Great  Western  R.  s  As  to  joint  tenants  generally, 

Co.   V.   Dunn,   19    Ohio   St.    162,    2  see,  ante,  §  673. 

Am.    Rep,  382,   and   Passenger  R.  o  As  to  common  or  general  inter- 

Co.  V.  Young,  21  Ohio  St.   518,  8  est  in  general,  see,  ante,  §  651. 

Am.  Rep.  78,  and  not  now  the  law  lo  Tandrup  v.  Sampsell,  234  111. 

anywhere  in  this  country.  See  note  526,  17  L.  R.  A.  (N.  S.)  852,  85  N.  E. 

13  Am.  Dec.  596.  331;    Fisher  v.  Cook,   23  111.  App. 

904 


ch.  v.] 


LEGACY  CHARGED  ON  LAND. 


§675 


an  action  by  such  owners  for  the  injury  to  premises  thus 
helcl.ii 

Acting  independently  and  not  in  concert,  the  torts  of 
the  defendants  become  separate  and  distinct,  and  they 
can  not  be  united  as  defendants  in  one  action, ^^  except 
in  a  suit  in  equity  to  enjoin  a  further  injury  to  the  plain- 
tiff, but  in  such  case  a  joint  recovery  for  damages  already 
done  can  not  be  had.^^  Yet  it  has  been  said  that  where  a 
personal  injury  is  caused  by  separate  but  concurrent 
negligence  of  two  parties  at  one  and  the  same  time,  they^ 
may  be  sued  either  separately  or  jointly.^*  \l 

§  675.  Legacy  charged  on  land.  In  an  action  to  com- 
pel the  payment  of  a  legacy  charged  on  land,  purchasers 
of  such  land  in  unequal  proportions,  charged  with  the 


621;  Low  V.  Mumford,  14  Johns. 
(N.  Y.)  426,  7  Am.  Dec.  469;  South- 
ard V.  Hill,  44  Me.  92,  69  Am.  Dec. 
85. 

11  De  Puy  V.  Strong,  37  N.  Y.  372, 
42  N.  Y.  (3  Keyes)  603,  4  Abb.  Pr. 
N.  S.  340,  4  Transc.  App.  239;  Wat- 
son V.  Milwaukee  &  M.  R.  Co.,  57 
Wis.  332,  15  N.  W.  468.  See  Brad- 
ley V.  Boynton,  22  Me.  287,  39  Am. 
Dec.  582. 

12  CAL.^ — Keyes  v.  Little  York 
Gold  Washing  &  Water  Co.,  53  Cal. 
724;  Miller  v.  Highland  Ditch  Co., 
87  Cal.  430,  22  Am.  St.  Rep.  254,  25 
Pac.  550;  Lang  v.  Lilly  &  Thurston 
Co.,  20  Cal.  223,  264,  128  Pac.  1028, 
1031.  ILL.—  Peoria,  City  of,  v. 
Simpson,  110  111.  294,  51  Am.  Rep. 
683.  IOWA — B  o  w  m  a  n  v.  Hum- 
phrey, 132  Iowa  240,  11  Ann.  Cas. 
131,  6  L.  R.  A.  (N.  S.)  1113,  109 
N.  W.  714;  William  Tackaberry 
Co.  V.  Sioux  City  Service  Co.,  154 
Iowa  538,  40  L.  R.  A.  (N.  S.)  113, 
132  N.  W.  945.  ME.— Campbell  v. 
Portland  Sugar  Co.,  62  Me.  552,  16 


Am.  Rep.  503.  N.  Y.— Van  Steen- 
burgh  V.  Tobias,  17  Wend.  562,  31 
Am.  Dec.  310;  Chipman  v.  Palmer, 

77  N.  Y.  51,  33  Am.  Rep.  566.  PA. 
— Button  V.  Lonsdowne,  198  Pa.  St. 
563,  82  Am.  St.  Rep.  814,  53  L.  R.  A. 
469,  48  Atl.  494;  Wiest  v.  Philadel- 
phia, City  of,  200  Pa.  St.  148,  58 
L.  R.  A.  666,  49  Atl.  891;  Morton 
V.  Union  Traction  Co.,  20  Pa. 
Super.  Ct.  Rep.  333.  R.  I.— Cole 
V.  Lippitt,  25  R.  I.  105,  54  Atl.  936. 
FED. — Jayne  v.  Loder,  78  C.  C.  A. 
653,  9  Ann.  Cas.  294,  7  L.  R.  A. 
(N.  S.)  991,  149  Fed.  31. 

13  Miller  v.  Highland  Ditch  Co., 
87  Cal.  430,  22  Am.  St.  Rep.  254,  25 
Pac.  550;  Warren  v.  Parkhurst, 
186  N.  Y.  45,  6  L.  R.  A.  (N.  S.)  1149, 

78  N.  E.  579,  affirming  105  App. 
Div.  239,  93  N.  Y.  Supp.  1009,  and 
45  Misc.  466,  92  N.  Y.  Supp.  725. 

See,  also,  authorities  cited  in 
notes  22  Am.  St.  Rep  257;  6 
L.  R.  A.  (N.  S.)  1149. 

14  Lang  V.  Lilly  &  Thurston  Co., 
20  Cal.  App.  223,  264,  128  Pac.  1028, 
1031. 


905 


§  676  CODE  PLEADING  AND  PRACTICE.  [Ft.  Ill, 

payment  of  such  legacy,  must  be  joined  ;^  but  in  an  action 
by  a  legatee  to  compel  an  executor  to  sell  real  estate  to 
pay  legacies,  it  is  not  necessary  to  make  a  special  devisee, 
residing  out  of  the  state,  a  party  to  the  action.- 

§  676.  Married  women — In  general,.  Under  the  pro- 
cedural code  of  California,  a  married  woman  being  sued 
she  must  be  joined  with  her  husband,^  except  in  those 
instances  specified  in  a  preceding  section,^  and  the  hus- 
band must  not  only  be  joined  in  all  those  instances  where 
required  to  be  joined  by  the  code,  but  he  must  be  served 
with  process  as  well.^  Yet  it  is  held  that  a  judgment 
against  a  married  woman  is  not  void  for  a  failure  to  join 
her  husband,  in  a  case  in  which  the  husband  is  required 
by  the  code  provision  to  be  joined,^  whether  the  service 
of  the  process  is  personal  or  by  publication,^  and  whether 
the  judgment  is  on  the  merits  after  a  trial  or  on  default."^ 
This  is  on  the  ground  that,  under  the  provisions  of  the 
procedural  code,'^  where  the  husband  should  have  been 
joined  but  is  not  by  failure  of  the  wife  to  object,  the 
defect  is  deemed  waived,  and  the  judgment  will  bind  her 
separate  property.^ 

Wife  may  defend  for  her  own  right  in  California, 
where  the  husband  and  wife  are  sued  together,  and  the 
husband  neglects  to  defend.^ 

1  Swasey  v.  Little,  24  Mass.  (7  — Porter  v,  Johnson,  172  Cal.  456, 
Pick.)  296.  156  Pac.  1022. 

2  West  V.   Smith,  49  U.   S.    (8  See,  ante,  §594. 

How.)   410,  12  L.  Ed.  1134.  3  Fassio    v.    Woolfrey,    —    Cal. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.      App.  — ,  174  Pac.  700. 

Proc,  2d  ed.,  §370;    Consolidated  4  Emery  v.  Kipp,  154  Cal.  83,  89, 

Supp.  1906-1913,  p.  1408.  129  Am.  St.   Rep.  145,  19  L.  R.  A. 

2  See,  ante,  §  594.  (N.  S.)   983,  97  Pac.  17. 
Action   against   married   woman  5  Id. 

to  recover  possession  of  real  prop-  6  Id. 

erty,  begun  while  she  was  living  7  Kerr's    Cyc.    Cal.    Code    C  i  v. 

separate  and  apart  from  her  hus-  Proc,  §  434. 

band  because  of  his  desertion  of  8  Bogart  v.   Woodruff,    96    Cal. 

her,  under  the  express  provisiohs  609,  611,  31  Pac.  618. 

of  the  Code  Civ.  Proc,  §  370,  the  o  Kerr's    Cyc.    Cal.    Code    C  i  v. 

husband  is  not  a  necessary  party.  Proc,  §  371, 

906 


ell.  Y.]  MARRIED    WOAIEN — CONTRACTU.  §  677 

§  677.    In  actions  ex  contractu.    The  husband  of 

a  married  woman  is  properly  joined  with  her  as  a  party 
defendant  in  an  action  upon  a  partnersliip  obligation 
contracted  by  the  wife  and  third  persons  as  partners 
previous  to  the  marriage  and  while  she  was  feme  sole.^ 
The  wife  is  an  improper  party  to  a  suit  brought  to  re- 
cover money  loaned  to  her  to  complete  the  amount  of 
purchase  money  for  a  lot  of  ground,  the  deed  of  which 
was  executed  to  her,  but  which  became  common  property, 
and  which  purchase  was  afterwards  ratified  by  the  hus- 
band. There  could  be  no  personal  judgment  against  the 
wife.-  In  California,  the  wife  may  appear  in  and  defend 
an  action  separately  from  her  husband.^  Where  the  de- 
fense of  the  wife  is  a  special  one,  she  can  defend  for  her 
own  right  as  well  when  sued  jointly  as  if  the  trial  was 
separate.^  To  enable  her  to  defend  in  her  own  right,  slie 
must  possess,  as  defendant,  the  rights  of  a  feme  sole."'  In 
an  action  pertaining  to  her  property  as  so,le  trader  under 
the  statute,^  the  husband  need  not  be  joined.' 

The  husband  is  properly  joined  with  the  wife  in  an 
action  upon  an  obligation  contracted  by  the  wife  previous 
to  marriage.**  In  a  suit  to  foreclose  a  mortgage,  and  set 
aside  a  fraudulent  conveyance  of  property  by  the  husband 
to  the  wife,  the  wife  was  properly  joined  with  the  hus- 

1  Kelly  V.  Hicks,  22  Cal.  457,  83  7  McKune  v.  McGarvey,  6  Cal. 
Am,  Dec.  78.  497;   Guttman  v.  Scammell,  7  Cal. 

2  Althof  V.  Conhelm,  38  Cal.  230,  455;  Camden  v.  Mullen,  29  Cal. 
99  Am.  Dec.  363.  564;    Stevenson    v.    Ackernian,    83 

3  Alderson  v.  Bell,  9  Cal.  315;  N.  J.  L.  458,  46  L.  R,  A.  (N.  S.)  238, 
Leonard  v.  Townsend,  26  Cal.  445.  85  Atl.  166;    Rouillier  v.  Wericki, 

4  Deuprez  V.  Deuprez,  5  Cal.  387.  3  E.  D.   Smith   (N.  Y.)    310;    Avo- 

5  Alderson  v.  Bell,  9  Cal.  315;  gadro  v.  Bull,  4  E.  D.  Smith  (N.  Y.) 
Leonard  v.  Townsend,  26  Cal.  445.  385;     Dunderdale    v.    Grymes,    16 

Under  South  Dakota  code,  when  How.  Pr.  (N.  Y.)  195;  Freeman  v. 

a  married  woman  is  a  party  to  an  Orser,    12    N.   Y.    Super.    Ct.    Rep. 

action,  the  same  rules  apply  as  if  (5  Duer)  477. 

she  were  single. — S.  D.  Code  Civ.  See,    also,    authorities    cited    in 

Proc,  §  77.  note  46  L.  R.  A.  (N.  S.)  240. 

6  See  Kerr's  Cyc.  Cal.  Code  Civ.  s  Keller  v.  Hicks,  22  Cal.  457,  83 
Proc,  §  1819.  Am.  Dec.  78. 

907 


§678 


CODE   PLEADING   AND   PRACTICE, 


[Pt.  Ill, 


band  as  a  defendant.®  And  in  a  foreclosure  of  a  hus- 
band's mortgage  for  the  purchase  money  of  the  wife's 
separate  estate,  both  must  be  joined.^^  So,  also,  where 
the  wife  executes  a  mortgage  with  her  husband  ;^^  and,  in 
partition  suits,  the  wdfe  must  be  joined  with  her  husband 
as  defendant.^-  In  forcible  entry  and  detainer,  also,  the 
husband  is  properly  joined  in  the  action. ^^  So,  also, 
where  the  homestead  is  involved,  the  wife  must  be  joined 
as  defendant  in  certain  cases. ^* 


§678. 


In  actions  ex  delicto. 


According  to  the 


common-law^  rule,  and  by  the  prevalent  doctrine  in  this 
country,^  the  husband  is  liable  for  the  torts  of  the  wife,^ — 
e.  g,,  her  slander  or  libel  of  another,^  although  he  was  not 
present,^  and  in  no  way  participated  in  the  tortious 
act,^ — and  the  husband  is  not  relieved  from  such  liability 


9  Kohner  v.  Asenauer,  17  Cal. 
579. 

10  Mills  V.  Van  Voorhies,  20  N.  Y. 
412,  10  Abb.  Pr.  152;  Rusher  v. 
Morris,  9  How.  Pr.  (N.  Y.)  266; 
affirmed,  9  How.  Pr.  282. 

11  Anthony  v.  Nye,  30  Cal.  401; 
Fitzgerald  v.  Fernandez,  71  Cal. 
504,  12  Pac.  652;  Conde  v.  Nelson, 
2  N.  Y.  Code  Rep.  58,  4  How.  Pr. 
75;  Conde  v.  Shepard,  4  How.  Pr. 
(N.  Y.)   75. 

12  De  Uprey  v.  De  Uprey,  27  Cal. 
329,  87  Am.  Dec.  81;  Tanner  v. 
Niles,  1  Barb.  (N.  Y.)  563;  Ripple 
V.  Gilborn,  8  How.  Pr.  (N.  Y.)  456, 
460. 

13  Howard  v.  Valentine,  20  Cal. 
282. 

14  Sargent  v.  Wilson,  5  Cal.  504; 
Revalk  v.  Kraemer,  8  Cal.  66,  68 
Am.  Dec.  304;  Marks  v.  Marsh,  9 
Cal.  96;  Moss  v.  Warner,  10  Cal. 
297;  Horn  v.  Volcano  Water  Co., 
13  Cal.  70,  73  Am.  Dec.  569;  An- 
thony V.  Nye,  30  Cal.  401. 


1  As  to  common-law  doctrine,  see 
note  30  L.  R.  A.  521. 

2  As  to  effect  of  state  legislation 
on  common-law  doctrine,  see  30 
L.  R.  A.  522. 

3  See  authorities  cited  in  foot- 
note 7,  this  section. 

As  to  husband's  liability  for 
wife's  torts,  see  notes  6  Am.  Dec. 
106,  83  Am.  Dec.  776;  92  Am.  St. 
Rep.  164;  6  L.  R.  A.  718. 

4  Jackson  v.  Williams,  92  Ark. 
490,  25  L.  R.  A.  (N.  S.)  842,  123 
S.  W.  751;  Morgan  v.  Kennedy,  62 
Minn.  348,  54  Am.  St.  Rep.  647, 
30  L.  R.  A.  521,  64  N.  W.  912. 

Wife  can  not  be  made  defendant 
for  slanderous  words  spoken  by  her 
husband.— Blake  v.  Smith,  19  R.  I. 
478,  34  Atl.  995. 

•J  As  to  question  of  presence  of 
husband  and  his  coercion,  see  note 
30  L.  R.  A.  526. 

0  Jackson  v.  Williams,  92  Ark. 
490,  25  L.  ft.  A.  (N.  S.)  842,  123 
S.  W.  751. 


908 


ch.  v.] 


JOINDER  OF  HUSBAND  WHEN". 


§678 


by  the  married  women 's  laws,^  although  there  is  author- 
ity to  the  contrary  on  this  last  point.^  While  a  husband 
is  not  relieved  of  his  common-law  liability  for  the  torts 
of  his  wife  by  the  married  women's  laws,  a  married 
woman  is  also  liable  for  civil  torts,  including  such  frauds^ 
as  do  not  arise  out  of,  or  are  not  directly  connected  with, 
or  are  a  part  of,  a  contract  which  she  has  undertaken  to 
make  ;^^  but  it  seems  that  she  is  not  liable  for  a  tort  based 
on  a  contract  express  or  implied,  at  least  not  in  some 
states. ^^ 

Joinder  of  husband  with  wife  as  a  defendant  in  an 
action  founded  upon  a  tort,  demanded  by  the  common  law, 
still  prevails,  unless  abrogated  by  statute  ;^2  ^^id  in  an 
action  against  the  wife  charging  a  tort  committed  out  of 
the  presence  of  the  husband,  the  latter  must  be  joined 
as  a  party  defendant.^^  Thus,  in  an  action  against  the 
wife  for  assault  and  battery  the  husband  must  be  joined 


7  Henley  v.  Wilson,  137  Cal.  273, 
92  Am.  St.  Rep.  160,  58  L.  R.  A.  941, 
70  Pac.  21;  Kellar  v.  James,  63 
W.  Va.  143,  14  L.  R.  A.  (N.  S.) 
1009,  59  S.  E.  939. 

As  to  effect  of  married  women's 
acts  upon  husband  liability  for 
wife's  torts,  see  note  14  L.  R.  A. 
(N.  S.)  1006;  25  L.  R,  A.  (N.  S.) 
840. 

s  Schuler  v.  Henry,  42  Colo.  371, 
377,  14  L.  R.  A.  (N.  S.)  1011,  94 
Pac.  360;  Lane  v.  Bryant,  100  Ky. 
138,  36  L.  R.  A.  709,  37  S.  W.  584. 

In  Colorado  married  women  are 
emancipated  to  a  vastly  greater  ex- 
tent than  in  any  other  state,  in 
which  state  she  is  given  absolute 
dominion  over  her  own  person  and 
estate,  entitling  her  to  sue  and  be 
sued  as  if  she  were  sole. — Schuler 
v.  Henry,  42  Cal.  371,  14  L.  R.  A. 
(N.  S.)   1011,  94  Pac.  360. 

0  As  to  fraud  generally,  see, 
ante,  §  659. 


10  Prentiss  v.  Paisley,  25  Fla. 
927,  7  L.  R.  A.  640,  7  So.  55. 

As  to  liability  of  married  women 
for  torts,  see  131  Am.  St.  Rep.  130. 

11  Id. 

Husband  and  wife  conducting  a 
swimming-pool  and  bath-house  on 
her  separate  property,  and  a  pa- 
tron of  the  business  having  been 
injured  while  lawfully  using  such 
premises  by  reason  of  its  not  be- 
ing in  perfect  condition,  his  feet 
slipping,  and  falling  upon  his  left 
leg  upon  the  projecting  points  of 
planks  alleged  to  have  been  negli- 
gently left  unseen;  the  court  held 
that  the  wife  was  not  liable  in  an 
action  for  tort.  —  Graham  v. 
Tucker,  56  Fla.  307,  131  Am.  St. 
Rep,  124,  47  So.  563. 

i2Horsburgh  v.  Murasky,  169 
Cal.  500,  147  Pac.  147. 

m  IND.— Ball  v.  Bennett,  21  Ind. 
427.  83  Am.  Dec.  356.  I  O  W  A— 
Turner  v.  Hitchcock,  20  Iowa  310; 


009 


§  679  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

as  a  party  defendant.^^  And  under  this  rule,  in  an  action 
against  the  wife  for  a  personal  injury  sustained  by  reason 
of  a  defective  sidewalk  in  front  of  her  separate  property, 
notAvithstanding  the  statutory  provision  enabling  her  to 
sue  alone  in  matters  affecting  her  separate  property/-^ 
the  husband  must  be  joined  with  the  wife  as  a  party 
defendant.^^ 

Spouses'  torts  against  each  other  are  not  within  the 
contemplation  of  the  code  section ;  the  section  applies  only 
to  actions  by  one  against  the  other  for  the  protection  and 
enforcement  of  property  and  rights,  and  the  enforcement 
of  contracts  relating  thereto. ^'^ 

§  679.  Minors  ok  infants,  insane  and  incompetent 
PERSONS.^  In  California,  when  a  minor  or  infant,  or  an 
insane  or  an  incompetent  person  is  a  party,  he  must  ap- 
pear either  by  his  general  guardian,  or  by  a  guardian 
ad  litem-  appointed  by  the  court  in  which  the  action  is 
pending,  in  each  case.  A  guardian  may  be  appointed  in 
any  case,  when  it  is  deemed  by  the  court  in  which  the 
action  is  prosecuted,  or  by  a  judge  thereof,  expedient  to 
represent  the  minor  or  infant,  insane  or  incompetent 
person  in  the  action  or  proceeding,  notwithstanding  he 
may  have  a  general  guardian,  and  may  have  appeared 
by  him.    And  the  general  guardian  or  guardian  ad  litem 

Musselman  v.   Galligher,   32   Iowa  14  Hanley  v.  Wilson,  137  Cal.  273, 

383;    McElfresh  v.  Kirkendall,  36  276,  92  Am.  St.  Rep.  160,  58  L.  R.  A. 

Iowa  224;   Luse  v.  Oaks,  36  Iowa  941,  70  Pac.  21. 

562.     KY.— Curd  v.  Dodds,  69  Ky.  15  See,  ante,  §  594. 

(6  Bush)   681.     MINN.  —  Brazil  v.  16  Horsburgh    v.    Murasky,    169 

Moran,  8  Minn.  236,  83  Am.  Dec.  Cal.  500,  147  Pac.  147. 

772.    N.  Y.— Rowing  v.  Manly,  49  i7  Peters  v.  Peters,  156  Cal.  32, 

N.    Y.    192,    10    Am.    Rep.    346,    13  36,   23    L.    R.   A.    (N.    S.)    699,    103 

Abb.   Pr.   N.   S.   276,  reversing  57  Pac.  219. 

Barb.  479;    Tait  v.  Culbertson,  30  i  As  to  insane  and   incompetent 

Barb.  9;  Anderson  v.  Hill,  53  Barb.  persons  generally,  see  Kerr's  Cyc. 

238;    Rowing  v.   Manly,    57   Barb.  Cal.  Civ.  Code,  §§38-41. 

479;  Peak  v.  Lemon,  1  Lans.  295;  2  As  to  appointment  of  guardian 

affirmed,    59    N.    Y.    666.     OHIO—  ad  litem  generally,  see  Rerr's  Cyc. 

Coolidge  V.  Parris,  8  Ohio  St.  594.  Cal.  Code  Civ.  Proc,  §  373. 

910 


ch.  v.] 


MINORS  AND  OTHER  INCOMPETENTS. 


§679 


SO  appearing  for  any  minor  or  infant,  insane  or  incom- 
petent person,  in  any  suit  shall  have  power  to  compro- 
mise the  same  and  to  agree  to  the  judgment  to  be  entered 
therein  for  or  against  his  ward,  subject  to  the  approval 
of  the  court  in  which  the  action  is  pending.^  When  a 
minor  or  infant  is  defendant,  a  guardian  will  be  ap- 
pointed upon  the  application  of  the  infant,  if  he  be  of  the 
age  of  fourteen  years,  and  apply  within  ten  days  after 
the  service  of  the  summons;  if  he  be  under  the  age  of 
fourteen,  or  neglect  so  to  apply,  then  upon  the  applica- 
tion of  any  other  party  to  the  action,  or  of  a  relative  or 
friend  of  the  infant.^  An  appearance  of  a  general  guard- 
ian of  a  minor  is  sufficient  to  give  the  court  jurisdiction 
of  the  person  of  an  infant,^  or  an  incompetent''  defend- 
ant, and  the  fact  that  no  guardian  ad  litem  was  appointed 
for  them  is  immaterial,'^  Where  a  minor  or  infant  de- 
fendant has  no  separate  or  special  defense,  no  separate 


••'.  Kerrs  Cyc.  Cal.  Code  C  i  v. 
I'roc,  2d  ed.,  §672;  Consolidated 
Snpp.  1906-1913,  p.  1309. 

A  counterpart  of  §  115  of  the 
New  York  Code,  except  the  last 
sentence,  added  by  amendment  of 
1913.  —  See  Crawford  v.  Neal,  56 
Cal.  321. 

Bond  and  oath  of  guardian  ad 
litem  filed  need  not  be  shown;  it 
is  sufficient  to  show  that  he  filed 
a  petition  for  appointment  and 
that  the  court  had  appointed  him. 
— Foley  V.  Northern  Cal.  Power 
Co.,  165  Cal.  103,  130  Pac.  1183. 

4  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  373. 

r.  Smith  v.  McDonald,  42  Cal. 
484;  Richardson  v.  Loupe,  80  Cal. 
490,  499,  22  Pac.  227;  Emeric  v. 
Alvarado,  64  Cal.  529,  597,  2  Pac. 
418,  3  Pac.  105  (although  no  sum- 
mons issued) ;  Western  Lumber 
Co.  V.  Phillips,  94  Cal.  54,  29  Pac. 


278    (appointment  of  guardian  ad 
litem  immaterial). 

6  Redmond  v.  Peterson,  102  Cal. 
595,  599,  41  Am.  St.  Rep.  204,  206, 
207,  36  Pac.  923. 

7  Compromise  by  guardian  ad 
litem,  subject  to  approval  of  court, 
is  within  his  powers. — Eggers  v. 
Krueger,  236  Fed.  852. 

Minors  or  infants  and  adults  are 
on  same  plane  as  binding  effect 
of  judgment  entered  with  consent 
of  his  attorney  of  record  employed 
by  next  friend.  —  Beliveau  v. 
Amoskeag  Mfg.  Co.,  68  N.  H.  225, 
228,  73  Am.  St.  Rep.  579,  44  L.  R,  A. 
167.  40  Atl.  734. 

As  to  judgments  against  minors 
or  infants,  see  notes  13  Am.  Dec. 
159.  89  Am.  Dec.  186-193. 

Next  friend  can  not  compromise 
judgment  of  minor  procured  by 
him.— Fletcher  v.  Parker,  53  W.  Va. 
425,  97  Am.  St.  Rep.  991,  44  S.  B. 
422. 


911 


§  680  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

or  special  answer  need  be  filed  in  his  behalf,  but  joinder 
in  a  common  answer  with  the  other  defendants  is  suffi- 
cient.^ 

Torts  or  tvrongs  of  minor  or  infant,  or  person  of  un- 
sound mind,  render  him  liable  for  actual,  but  not  for 
exemplary  damages.^ 

Probate  proceedings  not  within  the  above  provisions,^'' 
because  the  latter  are  not  "civil  actions,"  within  the 
meaning  of  the  provisions  of  the  procedural  code;^^  yet 
it  has  been  held  that  a  guardian  ad  litem  may  be  ap- 
Ijointed  for  the  purpose  of  applying  for  a  family  allow- 
ance in  a  probate  proceeding. ^2 

§  680.  Misjoinder  of  defendants — In  general.  In  an 
action  ex  contractu,  where  the  the  undertaking  was  joint, 
and  it  appears  from  the  plaintiff's  pleadings  that  persons 
are  made  parties  defendant  who  should  not  have  been, 
at  common  law,  the  mistake  was  fatal,^  unless  the  names 
of  the  persons  improperly  made  defendants  were  struck 
out  before  verdict;-  or  the  persons  thus  wrongfully 
joined  might  demur  because  of  the  misjoinder,^  or  enter 
a  plea  in  abatement,^  or  take  advantage  of  it  under  the 

8  Western   Lumber  Co.   v.   Phil-  3  Lipperd    v.    Edwards,    39    Ind. 

lips,  94  Cal.  54,  29  Pac.  228.  166;    Pangburn   v.    Ramsay,    11 

0  Kerr's  Cyc.  Cal.  Civ.  Code,  Johns.  (N.  Y.)  141;  Cameron  v. 
§  41.  Reynolds,    1    Cowp.    403,    407,    98 

10  Carpenter  v.   Superior  Court,      Eng.  Repr.  1154,  1156. 

75    Cal.    596,    599,    19    Pac.    174;  4  Childress  v.  McCullough,  5  Port. 

Lamb,  Estate  of,  6  Cob.  Prob.  Dec.  (Ala.)   54,  30  Am.  Dec.  549;   Gard- 

(Cal.)    432.  ner    v.    Samuels,    116    Cal.    84,    58 

11  Carpenter  v.  Superior  Court,  Am.  St.  Rep.  135,  47  Pac.  935; 
75  Cal.  596,  599,  19  Pac.  174.  Hough    v.    New    Smyrna    State 

12  Snowball,  Estate  of,  156  Cal.  Bank,  61  Fla.  290,  Ann.  Gas. 
235,  237,  104  Pac.  446.  1912D,   1200,   55   So.   462;    Tate  v. 

1  Bliss  on  Code  PI.  §  92.  Citizens'    Mut.  Ins.   Co.,   79   Mass. 

2  1  Chitty's  Pleadings  (16th  Am.  (13  Gray)  79;  Bibb  v.  Allen,  149 
ed.),  p.  51;  Robson  v.  Doyle,  3  U.  S.  481,  37  L.  Ed.  819,  13  Sup. 
El.  &   Bl.   396,  77   Eng.   C.   L.  395,  Ct.  Rep.  950. 

118  Eng.  Repr.  1191;   Wickens  Reason    why    misjoinder  im- 

V.    Steele,   2   J.    Scott  N.    S.    (2      proper  need  hot  be  stated  in  the 

C.  B.  N.  S.)  488,  89  Eng.  C.  L.  488.      demurrer;    it  is    sufficient   to  set 

912 


•h.  v.] 


MISJOINDER  OF  DEFENDANTS — IN   EQUITY. 


§681 


general  issue,"  move  arrest  of  judgment,  or  sustain  a  writ 
of  error.^  Where  the  liability  of  parties  to  the  obligation 
was  several,  a  misjoinder  of  defendants  is  not  necessarily 
fatal,  because  a  judgment  can  be  given  against  such  only 
as  the  evidence  showed  to  be  liable/ 

In  ex  delicto  actions  misjoinder  of  parties  defendant 
does  not  defeat  a  recovery  against  any  of  the  defendants 
whom  the  evidence  shows  to  be  liable  for  the  tort  com- 
plained of.^  Such  joinder  constitutes  no  objection  to  a 
recovery  against  some,  only,  of  defendants.^ 

In  suits  in  equity.    The  general  rules  as  to 


§681.    - 

the  joinder  of  parties,  already  discussed,^  governs  in 
equitable  actions;  but  as  in  the  case  of  an  action  for  a 
tort,^  the  rules  are  not  so  strictly  drawn,  and  a  mis- 
joinder of  parties  defendant  will  not  be  fatal,  where 
some  of  the  persons  named  can  be  dispensed  with,  and 


out  the  names  of  the  persons  who 
are  misjoined  with  the  party  de- 
murring; this  sufficiently  calls  the 
plaintiff's  attention  to  the  objec- 
tion.— G  a  r  d  n  e  r  v.  Samuels,  116 
Cal.  84,  58  Am.  St.  Rep.  135,  47 
Pac.  935. 

3  Tate  V.  Citizens'  Mut.  Ins.  Co., 
79  Mass.  (13  Gray)  79;  Elliot  v. 
Morgan,  7  Cor.  &  P.  334,  32  Eng. 
C.  L.  642. 

6  Robertson  v.  Smith,  18  Johns. 
(N.  Y.)  459.  9  Am.  Dec.  227. 

7  Hock  V.  Allendale  Township, 
161  Mich.  571,  21  Ann  Gas.  118,  126 
N.  W.  987. 

8  Pounds  V.  Richards,  21  Ala. 
424;  Milner  v.  Milner,  101  Ala, 
599,  603,  14  So.  373;  Lovelace  v. 
Miller,  150  Ala.  422,  14  Ann.  Cas. 
1139,  11  L.  R.  A.  (N.  S.)  670,  43 
So.  734;  Tandrup  v.  Sampsell,  234 
111.  526,  17  L.  R.  A.  (N.  S.)  852,  85 
N.  E.  331;  Chaffee  v.  United 
States,  85  U.  S.  (18  Wall.)  516,  21 
L.  Ed.  908. 

I  Code  PI.  and  Pr.— 58  9  J 


As  to  effect  of  misjoinder  of  de- 
fendants in  actions  for  tort,  see 
note  14  Ann.  Cas.  1142. 

As  to  joint  tort-feasors,  see, 
ante,  §  674,  post,  §  700. 

As  to  joinder  of  husband  in 
action  against  wife  for  a  tort,  see, 
ante,   §  678. 

9  Id.;  1  Chitty's  Pleading  (16th 
Am.  ed.),  p.  86;  Lovelace  v.  Mil- 
ler, 150  Ala.  422,  14  Ann.  Cas. 
1139;  11  L.  R.  A.  (N.  S.)  670,  43 
So.  734;  Hayden  v.  Nott.  9  Con. 
367;  Cunningham  v.  Dyer,  18  Ky. 
(2  T.  B.  Mon.)  51;  Lansing  v. 
Montgomery,  2  Johns.  (N.  Y.) 
382;  Jackson  v.  Woods,  5  Johns. 
(N.  Y.)  280;  Cooper  v.  South,  4 
Taunt.  802,  128  Eng.  Repr.  547. 

See  discussion  and  authorities, 
20   R.  C.  L.  707,  §  48. 

1  See,  ante,  §§635-639. 

2  See,  ante,  §  680,  footnotes  8 
and  9. 

3 


§  681  CODE  PLEADING  AND  PRACTICE.         [Pt.  Ill, 

the  suit  dismissed  as  to  them.^  A  plaintiff  may  amend 
his  pleading  by  omitting  a  person  who  is  a  mere  formal 
party  defendant,  and  whose  presence  in  the  snit  prevents 
the  court  from  taking  jurisdiction;^  but  the  mere  joinder 
or  non-joinder'^  of  merely  formal  defendants  to  a  suit  in 
equity  will  not  be  allowed  to  defeat  the  jurisdiction  of 
the  court.^ 

Remedy  for  misjoinder  is  demurrer,'^  except  in  those 
jurisdictions  in  which  a  motion  to  dismiss  as  to  the  per- 
sons misjoined  is  provided  for;^  but  such  demurrer  may 
be  interposed  or  motion  made  by  the  party  or  parties 
who  are  improperly  made  defendants,  only.^ 

Rule  governing  parties  defendant  in  a  suit  in  equity  in 
California  is  not  governed  by  the  old  equity  rule  of 
pleading/*^  but  by  the  Code  of  Civil  Procedure,^ ^  already 
discussed.^^  Where  there  is  one  connected  interest 
among  two  or  more  persons,  centering  in  the  point  at 
issue  in  a  suit  in  equity,  they  are  all  properly  made  de- 
fendants to  such  suit.^^  Thus,  all  persons  having  a  com- 
mon interest  in  lands,  are  proper  parties  defendant  in  a 

3  Carneal  v.  Banks,  23  U.  S.  (10  See  numerous  cases  cited,  1 
Wheat.)  181,  6  L.  Ed.  297;  Vattier  Rose's  Notes  on  U.  S.  Reps.,  pp. 
V.  Hinde,  32  U.  S.   (7  Pet.)   252,  8       1242-1245. 

L.   Ed.  675;   Horn  v.  Lockhart,  84  As  to  joinder  of  defendants   in 

U.    S.    (17   Wall.)    570,    21    L.    Ed.  equity  generally,  see  note  15  Am. 

057;  Grove  v.  Grove,  93  Fed.  807;  Dec.   427-430. 

North  Carolina  Min.  Co.  v.  West-  7  Fellows    v.    Fellows,    4    Cow. 

feldt,   151   Fed.   296;    Rogers   v.  (N.  Y.)  682,  15  Am.  Dec.  412. 

Penobscot   Min.    Co.,   83    C.   C.   A.  8  Dolan   v.    Hubinger,    109    Iowa 

380,  154  Fed.  610;  Regis  v.  United  408,  80  N.  W.  514;    Cedar  Rapids 

Drug  Co.,  180  Fed.  206.  Nat.    Bank    v.    Lavery,    110    Iowa 

See,  also,  20   R.  C.   L.   709,   §  49.  575,  80  Am.  St.  Rep.  325,  81  N.  W. 

4  Tug  River  Coal  &  Salt  Co.  v.  775. 

Brigel,  86  Fed.  818.  9  Gardner  v.    Samuels,    116   Cal. 

5  As  to  non-joinder  generally  84,  90,  58  Am.  St.  Rep.  135,  47 
see,  post,  §§  683-685.  Pac.  935. 

0  Wormley  v.  Wormley,  21  U.  S.  lo  Id. 

(8  Wheat.)   421,  5  L.  Ed.  651;   At-  n  Id. 

chison,  T.  &  S.  F.  R.  Co.  v.  Ph-il-  12  See,  ante,  §§  635-639. 

lips,    100    C.    C.    A.    215,    176    Pac.  13  Fellows    v.    Fellows,    4    Cow. 

663.  (N.  Y.)  682,  15  Am.  Dec.  412.    See 

914 


ell.  v.]  MISJOINDER   OF  DEPENDANTS — INEQUITY.  §681 

suit  in  equity  for  its  partition;^'*  conspirators  and 
affected  persons,  proper  parties  wliere  fraudulent  con- 
spiracy charged  ;^^'  conveyances  made  to  several  by  agree- 
ment, all  are  proper  parties  defendant  in  a  suit  for  an 
accounting;^"  likewise  several  holders  of  an  issue  of  cor- 
porate stock  alleged  to  be  spurious,  to  an  action  for  its 
cancellation;^'^  several  mortgagees  of  a  common  mort- 
gagor, are  proper  parties  defendant  to  a  suit  in  equity  to 
determine  the  validity  of  the  mortgagor's  title,^**  or  to 
determine  the  validity  of  the  mortgages  ;i'^  or  trustees 
under  different  deeds  of  the  same  property  may  be  joined 
as  defendants,  where  the  litigation  is  common  to  them 
all;-^  tax-sale  purchasers  after  accrual  of  plaintiff's  lien, 
are  proper  parties  defendant  in  a  suit  to  enforce  the 
vendor's  lien  for  purchase  money.^^  Varying  degrees  of 
interest  among  the  different  defendants,  is  no  objection 
to  their  joinder, — e.  g.,  where  one  has  but  a  part  interest, 
the  litigated  matter  being  entire  f^  thus,  several  persons 
concerned  in  fraudulent  acts,  are  proper  parties  to  a  suit 
to  cancel  and  annul  the  acts,  although  the  gains  by  the 
acts  are  several.^^ 

Distinct  and  uncotmected  title  being  the  foundation 

of  the  different  claims  of  various  parties,  whether  they 
may  be  properly  joined  as  defendants  depends  upon  the 
circumstances  and  facts  of  each  particular  case,  Ave  have 
already  seen.-^  Thus,  parties  holding  by  different  deeds 
securing  creditors,  it  has  been  said,  can  not  be  joined  as 

Leavens  v.  Butler,  8  Port.    (Ala.)  is  Carroll  v.   Roosevelt,   4   Edw. 

380;  Douglas  County  V.  Walbridge,  Ch.   (N.  Y.)   211. 

38  Wis.  179.  19  McLean  v.  Lafayette  Bank,  3 

14  Grady  v.  Malaso,  92  Wis.  666,  mcL.  415,   Fed,  Gas.  No.  8886. 

66  N.  W.  808.  20  Donalson    v.    Posey,    13    Ala. 

15  Stevens  v.  South  Ogden  Land,      ^gg 

Build.    &   Imp.    Co.,    14    Utah    232,  ;^  ^^^^^^  ^   ^^^^^^  ^3  ^^^   ^82. 

47  Pac.  81.  ,        ^    ^^  ,, 

10  Fish  v.  Berkey,  10  Minn.  199.  22  Ingersoll    v.    Kerby,    1    Walk. 

17  New  York  &  N.  H.  R.  Co.  v.  Ch.    (Mich.)    65. 

Schuyler,  17  N.  Y.  592.  7  Abb.  Pr.  -^  Andrews  v.  Pratt.  44  Cal.  309. 

41,  reversing  1  Abb.  Pr.  417.  lm  See,  ante,   §656,  footnote   12. 

915 


^  682 


CODE   PLEADING   AND    PRACTICE. 


[Ft.  HI, 


parties  defendant  where  the  creditors  are  unconnected.-"' 
On  the  other  hand,  several  persons  unconnected,  but  con- 
cerned in  the  same  fraud,  have  been  held  to  be  properly 
joined  as  parties  defendant.-*^ 

§682.     MOETGAGE     AND     MECHANICS'     LIEN     FORECLOSURE. 

In  a  suit  to  foreclose  a  mortgage  executed  by  a  wife  witli 
her  husband,  the  wife  is  a  proper  party  defendant.^  This 
is  under  the  general  rule  that  in  actions  to  foreclose  mort- 
gages, all  parties  who  own  or  have  an  estate  in  the  land 
to  be  sold  under  the  decree,  and  those  who,  either  orig- 
inally or  by  assignment,  are  liable  on  the  mortgage  debt, 
are  necessary  parties.  It  is  proper,  always,  to  join 
as  defendants  all  persons  materially  interested  in  the 
subject-matter  of  the  controversy.^    Thus  the  owner  of 


25  Johnson  v.  Brown,  21  Tenn. 
(2  Humph.)  327,  37  Am.  Dec.  556. 

-■0  Garner  v.  Harmony  Mills,  6 
Abb.  N.  C.  (N.  Y.)  212,  56  How. 
Pr.   452. 

1  Anthony  v.  Noye,  30  Cal.  401; 
Jones  V.  Gunn,  149  Cal.  687,  87 
Pac.  577. 

See,  also,  footnote  7,  this  sec- 
tion. 

As  to  married  women  defen- 
dants in  actions  ex  contractu,  see, 
ante,  §  677. 

Where  she  claims  the  property 
as  her  separate  estate  by  prior 
conveyance  from  her  husband. — 
Kohner  v.  Ashenauer,  17  Cal.  578. 

Where  wife  has  valid  home- 
stead claim  subject  to  mortgage, 
if  not  made  party  her  homestead- 
right  is  not  affected  by  the  decree. 
—Jones  V.  Gunn,  149  Cal.  687,  87 
Pac.  577.  See  Mabury  v.  Ruiz, 
58    Cal.    11. 

2Luning  v.  Brady,  10  Cal.  265; 
Whitney  v.  Higgins,  10  Cal.  547, 
70  Am.  Dec.  748;  Montgomery  v. 
Tutt,  11  Cal.  307;   Tyler  v.  Yreka 


Water  Co.,  14  Cal.  212;  De  Leon 
V.  Higyera,  15  Cal.  483;  Goode- 
now  V.  Ewer,  16  Cal.  461,  76  Am. 
Dec.  540;  McDermott  v.  Burke,  16 
Cal.  580;  San  Francisco  v.  Lawton, 
18  Cal.  475;  Burton  v.  Lies,  21  Cal. 
87;  Carpenter  v.  Williams,  25  Cal. 
161;  Horn  v.  Jones,  28  Cal.  194; 
Anthony  v.  Nye.  30  Cal.  401;  Siter 
V.  Jewett,  33  Cal.  96;  Carpenter 
V.  Brenham,  40  Cal.  221;  McComb 
V.  Spangler,  71  Cal.  418,  12  Pac. 
347;  Mitau  v.  Roddan,  149  Cal.  1, 
6  L.  R.  A.  (N.  S.)  275,  84  Pac. 
145;  Hill  V.  Towniey,  45  Minn.  167, 
47  N.  W.  653;  Wolff  v.  Ward,  104 
Mo.  127,  16  S.  W.  161;  Gillian  v. 
McDowall,  66  Neb.  820,  92  N.  W. 
991;  Brainard  v.  Cooper,  10  N.  Y. 
356;  Peck  v.  Mallams,  10  N.  Y. 
509,  Sheld.  Notes  199;  Moulton  v. 
Cornish,  138  N.  Y.  133,  20  L.  R.  A. 
370,  33  N.  E.  842;  People  v.  Mc- 
Clellan,  119  App.  Div.  (N.  Y.)  421, 
104  N.  Y.  Supp.  447;  Case  v. 
Price,  9  Abb.  Pr.  (N.  Y.)  Ill,  17 
How.  Pr.  384;  Walsh  v.  Rutgers 
F^re  Ins.  Co.,  13  Abb.  Pr.  33. 


916 


ell.  v.] 


FORECLOSURE  OF  MORTGAGE,  ETC. 


§682 


the  equity  of  redemption  is  a  necessary  party  to  a  fore- 
closure suit.3  And  the  same  is  true  of  the  grantee  or 
subsequent  mortgagee  of  the  mortgagor,  otherwise  he 


See  note  37  L.  R.  A.  741. 

As  to  necessity  of  making 
junior  incumbrance  party  in  suit 
to  foreclose,  see  note  36  L.  R.  A. 
(i\.    S.)    426. 

As  to  riglits  of  one  in  possession 
under  mesne  conveyance  from  a 
purchaser  at  a  void  foreclosure 
sale.— Kaylor  v.  Kelsey,  91  Neb. 
404,  40  L.  R.  A.  (N.  S.)  839,  136 
N.  W.  54. 

See,  also,  discussion  and  author- 
ities in  note  40  L.  R.  A.  (N.  S.) 
839-848. 

Holders  of  tax-liens,  outstand- 
ing, may  be  brought  in  on  the 
validity  of  the  liens  determined. 
— Broquet  v.  Warner,  43  Kan.  48, 
19  Am.  St.  Rep.  124,  22  Pac.  1004. 

Holder  of  title  not  made  party 
decree  of  foreclosure  a  nullity. — 
Haffley  v.  Maier,  13  Cal.  13. 

Mortgagor  who  has  conveyed 
the  mortgaged  property  is  not  a 
necessary  party  defendant  when 
the  relief  sought  is  confined  to  a 
foreclosure  of  the  mortgage  and 
a  sale  of  the  premises,  with  no 
prayer  for  a  deficiency  judgment. 
— San  Diego  Realty  Co.  v.  Hill, 
168  Cal.  637,  143  Pac.  1021. 
See  footnote  IS,  this  section. 
Parties  interested  must  be 
brought  in  although  their  interests 
are  different. — Hill  v.  Townley,  45 
Minn.  167,  47  N.  W.  653;  Wolff  v. 
Ward,  104  Mo.  127,  16  S.  W.  161. 
Party  In  interest  not  before 
court,  on  motion  court  bound  to 
direct  that  he  be  brought  in  and 
joined  as  defendant,  and  to  re- 
fuse to  give  judgment  until  this 
is  done. — People  v.  McClellan,  119 


App.   Div.    (N.   Y.)    421,   104   N.   Y. 
Supp.  447. 

Subsequent  lienholders  claiming 
an  interest  omitted,  supplemen- 
tary suit  to  bar  their  claim,  is 
proper  procedure  in  Nebraska.  — 
Gillian  v.  McDowall,  66  Neb.  820, 
92  N.  W.  991. 

Strict  foreclosure  not  allowed  to 
cut  off  rights  of  second  mort- 
gagee not  made  party. — Moulton 
V.  Cornish,  138  N.  Y.  133,  20 
L.  R.  A.  370.  33  N.  E.  842. 

As  to  strict  foreclosure  of  a 
mortgage  generally,  see  note  20 
L.   R.  A.  370. 

3  ARK. — Truman  v.  Bell,  54  Ark. 
273,  26  Am.  St.  Rep.  35,  15  S.  W. 
886.  CAL.— Cornell  v.  Corbin.  64 
Cal.  197,  30  Pac.  629;  Johnston  v. 
McDuffee,  83  Cal.  30,  23  Pac.  214. 
IND. — Watts  V.  Julian,  122  Ind. 
124,  23  N.  E.  698.  N.  Y.— Landon 
V.  Townshend,  112  N.  Y.  93,  8  Am. 
St.  Rep.  712,  16  N.  Y.  Civ.  Proc. 
Rep.  161,  19  N.  E.  424;  Reed  v. 
Marble,  10  Pai.  Ch.  409;  Bank  of 
Orleans  v.  Flagg,  3  Barb.  Ch.  316; 
New  York  Life  Ins.  &  Trust  Co. 
V.  Bailey,  3  Edw.  Ch.  317;  Case  v. 
Price,  6  Abb.  Pr.  113,  9  Abb.  Pr. 
Ill,  17  How.  Pr.  348;  Griswold 
V.  Fowler,  6  Abb.  Pr.  120;  Cooke 
v.  O'Higgins,  14  How.  Pr.  154. 
ORE.— Johnson  v.  White,  60  Ore. 
611,  119  Pac.  769.  S.  D.— Carpen- 
ter V.  Ingalls,  3  S.  D.  49,  51  N.  W. 
948.  WASH.—  Bisbee  v.  Carey. 
17  Wash.  224,  49  Pac.  224.  FED. 
—Dexter  v.  Arnold,  1  Sumn.  109, 
Fed.  Cas.  No.  2857;  Gordon  v. 
Lewis,  2  Sumn.  143,  Fed.  Cas.  No. 
5613. 


917 


§682 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  IIT, 


will  not  be  barred  of  his  estate  in  the  premises  but  will 
hold  them  subject  to  the  lien/  except  when  he  acquires 
his  interest  after  suit  brought.^  But  where  the  payment 
of  the  mortgage  debt  is  assumed  by  the  grantee,  as  be- 
tween himself  and  the  mortgagor,  although  the  grantee 
is  a  necessary  party,  the  grantor  is  not.^  In  New  York 
and  other  states  the  wife  of  the  mortgagor,  or  of  the 
subsequent  grantee,  is  a  necessary  party,  in  order  to  cut 
off  her  equity  of  redemption."  An  assignee  in  bank- 
ruptcy of  the  mortgagor  is  a  necessary  party,  and  if  not 
5 joined  may  sue  to  redeem;^  but  an  assignment  in  bank- 
ruptcy pending  suit  does  not  make  the  assignee  a  neces- 
sary party.^ 

If  a  mortgage  is  assigned  as  a  security,  the  assignor  is 
a  necessary  party  ;^^  or  the  assignor  of  a  mortgage  who 


4  Montgomery  v.  Tutt,  11  Cal. 
314;  De  Leon  v.  Higuera,  15  Cal. 
483;  Goodenow  v.  Ewer,  16  Cal. 
461,  76  Am.  Dec.  540;  Boggs  v. 
Fowler,  16  Cal.  559,  569,  76  Am. 
Dec.  561;  Kohner  v.  Ashenauer, 
117  Cal.  578;  Heyman  v.  Lowell, 
23  Cal.  106;  Skinner  v.  Buck,  29 
Cal.  253;  Bloodworth  v.  Lake  (No. 
2),  33  Cal.  265;  Porter  v.  Muller, 
65  Cal.  512,  4  Pac.  531;  Woodward 
V.  Brown,  119  Cal.  307,  63  Am.  St. 
Rep.  108,  51  Pac.  2,  542;  Morrow 
V.   Morrow,  48  Tex.   304. 

•"  W^hitney  v.  Higglns,  10  Cal. 
547,  70  Am.  Dec.  748. 

See,  also,  authorities  footnote 
20,  this  section. 

6  Van  Nest  v.  Latson,  19  Barb. 
(N.  Y.)  604;  Stebbins  v.  Hull,  29 
Barb.  (N.  Y.)  524;  Drury  v.  Clark, 
16  How.  Pr.  (N.  Y.)  424;  McArthur 
V.  Franklin,  15  Ohio  St.  485. 

See,  also,  footnote  12,  this  sec- 
tion. 

7  Mabury  v.  Ruiz,  58  Cal.  11; 
Mills   V.   Van  Voorhies,   20   N.   Y. 


412,  10  Abb.  Pr.  152;  Pickney  v. 
Wallace,  1  Abb.  Pr.  (N.  Y.)  82; 
Denton  v.  Nanny,  8  Barb.  (N.  Y.) 
618;  Lewis  v.  Smith,  11  Barb. 
(N.  Y.)  152;  Vastee  v.  Underwood, 
18  Barb.  (N.  Y.)  561;  Bromson  v. 
Gifford,  8  How.  Pr.  (N.  Y.)  389; 
Blydenburg  v.  Northrop,  13  How. 
Pr.  289;  Wheeler  v.  Morris,  15 
N.  Y.  Super.  Ct.  Rep.  (2  Bosw.) 
524;  Union  Bank  v.  Bell,  14  Ohio 
St.  200;  Dexter  v.  Arnold,  1  Sumn. 
109,  Fed.  Cas.  No.  3857;  Gordon 
V.  Lewis,  2  Sumn.  143,  Fed.  Cas. 
No.  5613. 

Homestead  mortgaged  by  hus- 
band wife  necessary  party  in  L-uit 
to  foreclose. — Mabury  v.  Ruiz,  58 
Cal.  11;  Jones  v.  Gunn,  149  Cal. 
687,  87  Pac.  577. 

sWinslow  V.  Clark,  47  N.  Y. 
261,  reversing  2  Lans.  377. 

9  Cleveland  v.  Bacrum,  24  N.  Y. 
613,  affirming  27  Barb.  252;  Daly 
V.  Burchell,  13  Abb.  Pr.  N.  S. 
(N.  Y.)  264. 

10  Kittle  V.  Van  Dyck,  1  Sandf. 
Ch.  (N.  Y.)  76,  3  Leg.  Obs.  126. 


918 


ch.  v.]  FORECLOSURE  OF  MORTGAGE,  ETC.  §  682 

guarantees  its  payment  ;^^  otherwise  if  there  is  no  express 
covenant  to  pay,  though  it  forms  part  of  the  purchase 
money.^- 

In  a  foreclosure  of  mortgage  given  by  trustees  the 
cestuis  que  trust  are  necessary  parties.  ^^  When  an  action 
is  brought  to  foreclose  a  mortgage  securing  the  payment 
of  a  promissory  note,  the  maker  and  indorser  of  the  note 
may  be  joined  as  defendants. ^^  A  writ  of  entry  to  fore- 
close a  mortgage  may  be  maintained  against  a  tenant  in 
possession.^^  Where  infants  having  an  equital)le  vested 
remainder  in  fee,  liable  to  be  defeated  by  their  dying  in 
the  lifetime  of  the  equitable  tenant  for  life,  are  not  made 
parties,  they  are  not  bound  by  the  decree  ;^*^  and  where 
there  are  several  future  and  contingent  interests,  the  per- 
son who  has  the  first  vested  estate  of  inheritance  and  all 
other  persons  having  prior  rights  or  interests  in  the 
premises  must  be  made  parties,  although  every  person 
having  a  future  or  contingent  interest  is  not  a  necessary 
party.^^  In  such  suit,  where  the  defendant  dies  after  the 
commencement  of  suit,  the  administrator  becomes  a  nec- 
essary party  in  a  petition  for  decree  of  sale  of  mortgaged 
premises,  if  it  is  sought  to  have  a  judgment  over  against 
the  estate  for  any  deficiency.  ^'^ 

In  general,  all  incumbrances  prior  and  subsequent  are 
proper  parties  defendant,  and  should  be  joined  if  it  is 
desired  to  secure  a  judgment  binding  them;^"   but   an 

11  Bristol  V.  Morgan,  3  Edw.  Ch.  ir.  Fales  v.  Gibbs,  4  Mas.  402, 
(N.  Y.)   142.  Fed.  Cas.  No.  4621. 

12  Lockwood  V.  Benedict,  3  Edw.  lo  Williamson  v.  Field,  2  Sandf. 
Ch.   (N.  Y.)   472.  Ch.    (N.  Y.)   533. 

See,  also,  authorities  footnote  6,  i"  Nodine    v.    Greenfield,    7    Pai. 

this  section.  Ch.   (N.  Y.)   544,  34  Am.  Dec.  3G:;. 

13  Woolner  v.  Wilson,  5  111.  App.  is  Belloc  v.  Rogers,  9  Cal.  123; 
439;  Piatt  v.  Oliver,  2  McL.  267,  Fallon  v.  Butler,  21  Cal.  24.  SI 
Fed.  Cas.  No.  11115.  Am.    Dec.    140;    San   Diego  Realty 

14  Eastman  v.  Turner,  24  Cal.  Co.  v.  Hill.  168  Cal.  637,  143  Pac. 
379,    382;     Meehan    v.    First    Nat.  1021. 

Bank,   44   Neb.  213,  222,   62  N.  W.  ii»  Haines  v.  Beach,  3  .Johns.  Ch. 

490.  (N.  Y.)  461;  Ensworth  v.  Lambert, 

910 


§682 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  Ill, 


incumbrancer  who  becomes  such  pending  suit  is  not  en- 
titled to  redeem,  and,  therefore,  need  not  be  made  a 
party.^"  But  in  California,  no  person  holding  a  convey- 
ance from  or  under  the  mortgagor  of  the  property  mort- 
gaged, or  having  a  lien  thereon,  which  conveyance  or  lien 
does  not  appear  of  record  in  the  proper  office  at  the  time 
of  the  commencement  of  the  action,  need  be  made  a  party 
to  such  action ;  and  the  judgment  therein  rendered  and  the 
proceedings  therein  had  are  as  conclusive  against  the 
party  holding  such  unrecorded  conveyance  or  lien  as  if 
he  had  been  made  a  party  to  the  action.-^ 

Ordinarily,  in  an  action  to  foreclose  a  mortgage,  it  is 
not  necessary  to  make  prior  mortgagees  or  incumbrancers 
parties;--  but  all  subsequent  lienors  by  judgment  must 
be  made  parties.-^  It  is  held  in  some  of  the  states  that 
the  heirs  of  a  deceased  mortgagor  are  necessary  parties 
in  a  suit  to  foreclose  the  mortgage;-^  but  in  California 
the  heirs  are  not  necessary  parties  in  an  action  against  an 


4  Johns.  Ch.  (N.  Y.)  605;  Jones  v. 
Williams,  155  N.  C.  179,  36  L.  R.  A. 
(N.  S.)  426,  71  S.  E.  222;  Finley 
V.  Bank  of  United  States,  24  U.  S. 
(11  Wheat.)  304,  6  L.  Ed.  480; 
Matcalm  v.  Smith,  6  McL.  416, 
Fed.  Cas.  No.  9272. 

As  to  necessity  of  making  junior 
incumbrance  party  to  a  fore- 
closure proceeding,  see  discussion 
and    authorities    in    36    L.    R.    A. 

(N.   S.)   426. 

Waiver  of  junior  lien  by  failure 
to  assert  it  in  foreclosure  pro- 
ceedings. —  Dixon  V.  Eikenberry, 
161  Ind.  311,  68  L.  R.  A.  323,  67 
N.   E.   915. 

See,  also,  note  68  L.  R.  A.  323. 

20  Cook  V.  Mancius,  5  Johns.  Ch. 
(N.  Y.)  89;  People's  Bank  of 
Hamilton  Mfg.  Co.,  10  Pai.  Ch. 
(N.  Y.)  481;  Loomis  v.  Stuyvesant, 
10  Pai.  Ch.  (N.  Y.)  490;  Winches- 


ter, Bishop  of,  V.  Paine,  11  Yes. 
194,  32  Eng.  Repr.  1062,  8  Rev. 
Rep.  131. 

See,  also,  authorities  footnote  5, 
this  section. 

21  Kerr's  Cyc.  Cal.  Code  Civ. 
Proc,  §  726. 

22  White  V.  Holman,  32  Ark. 
753;  Crawford  v.  Mumford,  29  111. 
App.  445;  Evans  v.  McLucas,  12 
S.  C.  56;  Hague  v.  Jackson,  71 
Tex.  761,  12  S.  W.  63. 

23  De  Lashmutt  v.  Sellwood,  10 
Ore.  319;  Wilson  v.  Tarter,  22  Ore. 
510,  30  Pac.  500;  Williams  v.  Wil- 
son, 42  Ore.  306,  95  Am.  St.  Rep. 
745,  70  Pac.  1033. 

24  Pillow  V.  Santelle,  39  Ark.  61; 
Hill  V.  Townley,  45  Minn.  167,  47 
N.  W.  653;  Kenshow  v.  Taylor,  7 
Ore.  315;  Tropier  v.  Waldo,  16 
S.  C.  276;  Anrud  v.  Scandinavian- 
American  Bank,  27  Wash.  16,  22, 
67  Pac.  364. 


920 


ch.  v.]  FORECLOSURE  mechanics'  LIEN.  §682 

administrator  to  foreclose  a  mortgage.-'^  The  surviving 
partner  is  a  proper  party  to  an  action  to  foreclose  a 
mortgage  made  by  a  deceased  partner  of  his  individual 
property  to  secure  the  firm  indebtedness,  but  is  not  a 
necessary  or  indispensable  party  thereto.^® 

Suits  for  the  foreclosure  of  a  mechanics'  lien  are  in 
many  respects  analogous  to  those  in  ordinary  foreclosure. 
All  parties  necessary  to  enable  the  court  to  do  complete 
justice  may  be  joined.^^  But  it  is  said  that  in  an  action 
to  foreclose  a  mechanic's  lien  upon  a  mine  and  millsito, 
where  the  defendant  is  adjudged  a  bankrupt  pending  the 
proceeding  to  foreclose,  it  is  not  necessary  to  bring  in  the 
trustee  in  the  bankruptcy  proceedings  under  the  require- 
ments of  the  California  procedural  code-^  regulating  the 
bringing  in  of  new  parties.-^  In  a  suit  to  foreclose  a  lien 
by  a  materialman  or  subcontractor,  the  contractor  or 
original  promisor,  against  whom  a  debt  must  be  estab- 
lished as  the  foundation  of  a  decree,  is  an  indispensable 
party.^^ 

25  Bayly  v.  Muehe,  65  Cal.  345,  given  in  Bloom  on  Mechanics' 
3  Pac.  467,  4  Pac.  486;  McCaughey  Liens,  §§  663-669;  Id.  Supplement, 
V.  Lyall,  152  Cal.  615,  617,  93  Pac.      pp.  234,  235. 

681;    affirmed,    224    U.    S.    558,    56  28  Kerr's    Cyc.    Cal.    Code    Civ. 

L.  Ed.  883,  32  Sup.  Ct.  Rep.  602;  Proc,  2d   ed.,  §389;    Consolidated 

McCIung  V.  Cullins,  15  Okla.  402,  Supp.  1906-1913,  p.  1420. 

406,    82    Pac.    499;     Hearfield    v.  29  Kritzer  v.  Tracy  Engineerinrr 

Bridge,  67  Fed.  334-336.  Co.,  16  Cal.  App.  291.  116  Pac.  700. 

26  London,  Paris  &  American  See  authorities,  footnote  9,  this 
Bank   v.    Smith,    101    Cal.    415,    35  section. 

Pac.  1027.  :^o  Davis  v.  John  Mouat  Lumbor 

27  See,  generally,  ante,  §§  63G-  Co.,  2  Colo.  App.  381,  31  Pac.  1S7; 
639;  Kaylor  v.  O'Connor,  1  Estey  v.  Ilaliock  &  Howard  Luni- 
E.  D.  Smith  (N.  Y.)  672;  Sullivan  ber  Co.,  4  Co'.o.  App.  165,  34  Pas. 
V.  Decker,  1  E.  D.  Smith  (N.  Y.)  1113;  Sayre-Newton  Lunil)cM-  Co. 
699;  Foster  v.  S  k  i  d  m  o  r  e,  1  v.  Park,  4  Colo.  App.  432,  ;JG  Tac. 
E.  D.  Smith  (N.  Y.)   719;   Lowber  445. 

V.   Childs,   2   E.   D.   Smith    (N.   Y.)  California    rule    and    autlioritics 

577_  given    in    Bloom    on    Mechanics' 

California    rules   and   cases    are      Liens,  §  6G5;  Id.  Gupp.,  p.  23d. 

921 


5  683 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  III. 


'^  683.  Non-joinder  of  defendants — In  actions  at  law. 
At  common  law,  in  actions  ex  contractu,  where  the 
obligors  were  jointly  bound,  and  were  all  living  at  the 
time  the  suit  was  commenced,  the  non-joinder  of  persons 
who  should  be  parties  defendant  could  be  taken  advan- 
tage of  by  plea  in  abatement  only,^  verified  by  affidavit.- 
In  the  various  jurisdictions  in  this  country,  advantage 
may  be  taken  of  the  defect,  where  it  appears  upon  the 
face  of  the  plaintiff's  complaint,  by  demurrer  showing 
wdio  the  omitted  parties  are,^  by  motion  in  arrest  of 
judgment,"*  or  by  a  writ  of  error  f  and  where  the  defect 
does  not  appear  upon  the  face  of  the  complaint,  by 
answer^  or  by  verified  plea  in  abatement, '^ — and  if  objec- 


1  1  Chitty's  Pleading  (16th  Am. 
ed.),  p.  53;  2  Id.,  p.  269.  See: 
ARK. —  Taylor  v.  Auditor,  The,  2 
Ark.  190;  Hamilton  v.  Buxton,  6 
Ark.  26.  ILL.—  Lurton  v.  Gilliam, 
2  111.  (1  Scam.)  577,  33  Am.  Dec. 
430.  IND.—  Bledsoe  v.  Irvin,  35 
Ind.  294.  N.  H.—  Campbell  v.  Wal- 
lace, 12  N.  H.  362,  37  Am.  Dec.  219. 
N.  Y.— Robertson  v.  Smith,  18 
.Johns.  459,  9  Am.  Dec.  227;  La 
Page  V.  McCrea,  1  Wend.  164,  19 
Am.  Dec.  469.  VT.— Hilliker  v. 
Loop,  5  Vt.  116,  26  Am.  Dec.  286; 
Nash  V.  Skinner,  12  Vt.  219,  36 
Am.  Dec.  338;  Needham  v.  Heath, 
17  vt.  226.  FED.— Oilman  v. 
Rives,  35  U.  S.  (10  Pet.)  298,  9 
L.  Ed.  432. 

2  1  Chitty's  Pleading  (16th  Am. 
ed.),  p.   53. 

3  Zabriskie  v.  Smith,  13  N.  Y. 
322,  64  Am.  Dec.  551;  Crawford 
V.  Klamath  County  School  Dist., 
68  Ore.  388,  Ann.  Cas.  1915C,  477, 
50  L.  R.  A.  (N.  S.)  147,  137  Pac. 
217;  Roberts  v.  McLean,  16  Vt. 
60S,  42  Am,  Dec.  529. 

Non-joinder  disclosed,  but  it  not 
appearing    whether    the    omitted 


party  is  alive  or  dead,  the  advan- 
tage can  not  be  taken  advantage 
of  by  a  general  demurrer. — Bur- 
gess v.  Abbott,  6  Hill  (N.  Y.)  137, 
142,  affirming  1  Hill  476. 

Suit  on  judgment,  omission  to 
join  one  of  the  joint  judgment- 
defendants  must  be  taken  advan- 
tage of  by  demurrer;  in  suit  on 
joint  contract,  by  plea  in  abate- 
ment.— Oilman  v.  Rivers,  35  U.  S. 
(10  Pet.)  289,  9  L.  Ed.  432. 

4  Roberts  v.  McLean,  16  Vt.  608, 
42  Am.   Dec.  529. 

Ground  for  nonsuit.— Hilliker  v. 
Loop,  5  Vt.  116,  26  Am.   Dec.  286. 

0  Roberts  v.  McLean,  16  Vt.  608, 
42  Am.  Dec.  529. 

Motion  to  dismiss  for  want  of 
equity  not  proper  method  of  ob- 
jecting to  non-joinder  of  defen- 
dants.— Hightower  v.  Thornton,  S 
Ga.  486,  52  Am.  Dec.  412. 

0  Zabriskie  v.  Smith,  13  N.  Y. 
322,  64  Am.  Dec.  551;  Eberle  v. 
Drennan,  40  Okla.  59,  51  L.  R.  A. 
(N.  S.)    68,  136  Pac.  162. 

7  Western  Union  Tel.  Co.  v. 
State  ex  rel.  Hammond  Elevator 
Co.,  165  Ind.  492,  6  Ann.  Cas.  880, 


922 


•h.  V.' 


NON- JOINDER  OF  DEFENDANTS. 


§683 


tion  is  not  so  taken  it  is  deemed  waived.^  lu  tliose  cases 
in  which  the  obligors  are  jointly  and  severally  bound,  the 
plaintiff  has  his  election  to  sue  one  or  all;  and  if  he 
should  sue  more  than  one  and  less  than  all,  the  defect 
must  be  taken  advantage  of  by  plea  in  abatement;''  it  is 
not  available  under  a  plea  of  the  general  issue  ;^''  but 
where,  after  issue  joined,  the  cause  as  to  some  of  the 
persons  who  are  proper  parties  defendant  is  discon- 
tinued, that  fact  can  be  taken  advantage  of  on  the  trial. ^^ 
In  the  case  of  a  joint  and  several  obligation  executed  by 
several  obligors,  and  some  of  the  obligors  have  paid  their 
obligation  to  the  plaintiff,  on  an  action  to  enforce  pay- 
ment by  the  delinquent  obligors,  a  complaint  against  the 


3  L.  R.  A.  (N.  S.)  153,  76  N.  E.  100; 
State  of  Indiana  v.  Worain,  6  Hill 
(N.  Y.)  33,  40  Am.  Dec.  378;  Gil- 
man  V.  Rives,  35  U.  S.  (10  Pet.) 
298,  9  L.  Ed.  432. 

Plea  in  abatement  must  be  filed 
before  answer  in  bar  is  pleaded. 
—Western  Union  Tel.  Co.  v.  State 
ex  rel.  Hammond  Elevator  Co.,  165 
Ind.  492,  6  Ann.  Cas.  880,  3  L.  R.  A. 
(N.  S.)   153,  76  N.  E.  100. 

s  See  Campbell  v,  Wallace,  12 
N.  H.  362,  37  Am.  Dec.  219;  Zabris- 
kie  V.  Smith,  13  N.  Y.  322,  64  Am. 
Dec.  551;  Wyman  v.  Herard,  9 
Okla.  35,  59  Pac.  1009;  Miller  v. 
Campbell,  13  Okla.  75,  74  Pac.  507; 
Culbertson  v.  Mann,  40  Okla.  249, 
120  Pac.  918;  Eberle  v.  Drennan, 
40  Okla.  59,  51  L.  R.  A.  (N.  S.) 
68,  136  Pac.  162;  Kendall  v.  Ham- 
ilton, 4  App.  Cas.  504,  1  Eng.  Rui. 
Cas.  175. 

After  answer  on  merits  objec- 
tion for  non-joinder  can  not  be 
taken.— Pascal  v.  Duros,  8  Rob. 
(La.)   112,  41  Am.  Dec.  294. 

9  ALA, — Jones  v.   Pitcher,   3 


Stew.  &  P.  135,  24  Am.  Dec.  716. 
CONN.— Bradley  v.  Camp,  1  Kirby 
77,  1  Am.  Dec.  13;  Davison  v. 
Holden,  55  Conn.  103,  3  Am.  St, 
Rep.  40,  10  Atl.  515.  ILL.— Lurton 
v.  Gilliam,  2  111.  (1  Scam.)  577,  33 
Am.  Dec.  430.  ME.— Dennett  v. 
Chick,  2  Me.  (2  Greenl.)  191,  11 
Am.  Dec.  53;  Chick  v.  Trevett,  20 
Me.  462,  37  Am.  Dec.  68;  Rand  v. 
Nutter,  56  Me.  339;  West  v.  Fur- 
bish, 67  Me.  19.  MD.— Smith  v. 
Cooke,  31  Md.  174,  100  Am.  Dec. 
58.  N.  H.— Olcott  v.  Little,  9  N.  H. 
259,  32  Am.  Dec.  357;  Burt  v. 
Stevens,  21  N.  H.  232.  N.  Y.— 
La  Page  v.  McCrea,  1  Wend.  164, 
19  Am.  Dec.  469.  FED.— Minor  v. 
Mechanics'  Bank,  26  U.  S.  (1  Pet.) 
46,  7  L.  Ed.  47;  United  States  v. 
Leffler,  36  U.  S.  (11  Pet.)  86,  9 
L.  Ed.  642. 

10  Bradley  v.  Comp,  1  Kirby 
(Conn.)  77,  1  Am.  Dec.  13;  Latli- 
rop  V.  Arnold,  25  Me.  136,  43  Am. 
Dec.  256;  Nash  v.  Skinner,  12  Vt. 
219,  36  Am.  Dec.  338. 

11  New  Orleans,  City  of,  v.  Rip- 
lep,  5  La.  121,  25  Am.  Dec.  175. 


923 


§  683  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

defendants  wlio  are  in  default  only,  is  not  demurrable 
for  non- joinder  of  parties. ^^ 

hi  actions  ex  delicto  the  rule  is  different.  At  common 
law,  if  several  persons  jointly  committed  a  tort,  the  plain- 
tiff had  his  election  (1)  to  sue  all  such  persons,  (2)  to  sue 
any  number  less  than  all,  and  (3)  to  sue  one  of  them 
alone.^2  The  reason  for  this  rule  was  the  fact  that  a  tort 
is,  in  its  nature,  a  separate  act  of  each  individual.^^  The 
rule  is  the  same  in  this  country,  both  under  the  former 
procedure  and  under  the  reformed  judicature. ^^  Hence, 
in  an  action  in  form  ex  delicto  against  one  only  for  a  tort 
committed  by  two  or  more  persons,  he  can  not  plead  the 
nonjoinder  of  the  other  or  others,  in  abatement^'^  or  in 
bar,^'  in  the  absence  of  a  statute  conferring  such  a  right,^^ 
because  the  plea  in  abatement  can  be  adopted  in  those  cases 
only  in  which  the  plaintiff  must  join  all  the  parties  who 
are  liable,  and  not  in  those  cases  in  which  the  plaintiff 
has  an  election  and  may  join  all  or  not,  as  he  may  choose.^^ 
And  where  an  injury  results  to  a  person  from  concurring 
causes,  the  acts  or  omissions  of  two  or  more  other  per- 
sons, one  party  in  fault  is  not  exempt  from  full  liability 
for  the  injury,  although  another  party  or  parties  are 

12  Champlin  Bros.  v.  Sperling,  in  Pascal  v.  Ducros,  8  Rob.  (La.) 
84  Neb.  633,  121  N.  W.  976.  112,  41  Am.  Dec.  294,  the  court  say- 

13  1  Chitty's  Pleading  (16th  Am.  ing  that  if  the  objection  could  be 
ed.),  p.  97.  taken  at  all,  it  could  not  be  taken 

14  Id.;  Sutton  v.  Clarke,  6  Taunt.  after  answer  to  the  merits. 

29,   35,  42,   1  Eng.  C.  L.   493,   128  i7  1  Chitty's  Pleading  (16th  Am. 

Eng.  Repr.  943,  16  Rev.  Rep.  563,  ed.),  p.  98. 

15  Buckles  V.  Lambert,  61  Ky.  is  See  Tootle  v.  Coleman,  46 
(4  Mete.)  330;  Burnham  v.  Web-  C.  C.  A.  132,  57  L.  R.  A.  120,  107 
Bter,  5  Mass.  269,  270;   Thomas  v.  Fed.  41. 

Ramsey,   6   Johns.    (N.   Y.)    31;  i9  1  Chitty's  Pleading  f  16th  Am. 

Creed  v.  Hartmann,  29  N.  Y.  591,  ed.),  p.  98;  Wheeler  v.  Worcester, 

86  Am.  Dec.  441;  North  Pa.  R.  Co.  92  Mass.  (10  Allen)  600,  601;   Sut- 

V.  Mahony,  57  Pa.  St.  152.  ton  v.  Clarke,  6  Taunt.  29,  35,  42, 

10  Mitchell  v.   Torbutt,   5   T.   R.  1  Eng.  C.  L.  493,  128  Eng.  Repr. 

649,   2    Rev.    Rep.   648,   101   En.g.  943,  16  Rev.  Rep.  563;   Mitchell  v. 

Repr.  362,  1  Eng.  Rul.  Cas.  183.  Torbutt,  5  T.  R.  649,  2  Rev.   Rep. 

Question  raised  and  not  decided  648,  1  Eng.  Rul.  Cas.  183. 

924 


ch.  v.] 


NON-JOIXDER — IN  EQUITY. 


§684 


equally  culpable,-"  and  the  acts  contributing  to  the  injury 
were  each  independent  one  of  the  other.-^ 

Exceptions  to  the  rule  are  to  be  noted.    Thus,  in  a 

case  where  the  dogs  of  separate  individual  owners  worry 
and  kill  the  sheep  of  a  third  person,  such  third  person  can 
not  maintain  a  joint  action  against  the  o^\^lers  of  the  dogs 
to  recover  for  the  damage  done  to  the  sheep.^^  In  a  case 
where  several  persons  are  the  joint  owners  of  real  prop- 
erty, and  the  injury  results  from  a  neglected  duty  inci- 
dent to  their  ownership  or  title,  where  one  of  the  joint 
owners  is  sued  alone  for  the  injury,  he  may  plead  in 
abatement  the  non-joinder  of  his  co-tenants.-^ 

^  684.    In    suits   in    equity.     The    general    rules 

regarding  the  joinder  and  non-joinder  of  parties  in  gen- 
eral have  been  already  discussed,^  and  noted  that  in  those 
cases  in  which  there  is  an  association-  of  several  persons 
A\ith  a  common  or  general  interest,^  one  or  more  may  sue 


20  Wolff  Mfg.  Co.  V.  Vinson,  152 
111.  9,  26  L.  R.  A.  229,  38  N.  E.  694 
(negligently    knocking    over 
barber's  pole  on  traveler,  although 
barber  negligent  in  placing  same) ; 
Louisville  &   Evansville  Mail   Co. 
V.   Barnes,   117   Ky.   860,   111   Am. 
St.    Rep.   273,  64   L.   R.   A.   574,  79 
S.    W.    261     (death    of    passenger 
through  negligence  of  steamer 
company  no  bar  to  recovery  from 
another   company   where    negli- 
gence   also    responsible) ;    Ricker 
V.  Freeman,  5  N.  H.  420;  Chapman 
V.  New  Haven  R.  Co.,  19  N.  Y.  341, 
75    Am.    Dec.    344;    Schonfeld    v. 
Metropolitan   St.  R.  Co.,  40  Misc. 
(N.   Y.)    201,   204,   81   N.   Y.   Supp. 
644;  Mott  v.  Hudson  River  R.  Co., 
21  N.  Y.  Super.  Ct.  Rep.  (8  Bosw.) 
345;    Beopple  v.  Illinois   Cent.   R. 
Co.,  104   Tenn.   420,   428,   58   S.  W. 
231   (railroad  company  improperly 
blocking  street  liable  for  damages 


caused  by  reason  of  frightening 
horses  by  the  negligent  operation 
of  another  train) ;  Peck  v.  Neal,  3 
McL.   22,  Fed.  Cas.  No.  10892. 

As  to  effect  of  concurring  negli- 
gence of  third  party  upon  liability. 
See  note  17  L,  R.  A.  33. 

21  Day  V.  Louisville  Coal  &  Coke 
Co.,  60  W.  Va.  27,  10  L.  R.  A. 
(N.  S.)   167,  53  S.  E.  776. 

22  See  Russell  v.  Tomlinson,  2 
Conn.  206;  Van  Steinburgh  v.  To- 
bias, 17  Wend.  (N.  Y.)  562,  31  Am. 
Dec.  310;  Adams  v.  Hall,  2  Vt.  9, 
19  Am.  Dec.  690. 

See,  also,  1  Chitty's  Pleading 
(16th  Am.  ed.),  p.  93,  and  especi- 
ally footnote  Ul. 

2:i  Southard  v.  Hill.  44  Me.  92, 
69  Am.  Dec.  85;  Wheelwright  v. 
Depeyster,  1  Johns.  (N.  Y.)  471, 
3  Am.  Dec.  345. 

1  See,  ante,  §§  635-640. 

2  See,  ante,  §  644. 

3  See,  ante,  §  651. 


925 


§  685  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

or  defend  for  all.  The  rules  above  discussed  apply,  alike, 
in  law  and  equity,  and  in  equity,  when  the  parties  are 
numerous  and  difficult  or  impracticable  to  bring  before 
the  court, ^  the  joinder  or  non-joinder  is  a  matter  of  sound 
judicial  discretion  on  the  part  of  the  trial  court.'^  Sucli 
persons,  only,  as  have  such  an  interest  in  the  subject- 
matter  of  the  action,  or  in  the  decree  to  be  rendered,  as 
to  render  them  necessary  to  a  complete  determination  of 
the  controversy  before  the  court,  are  necessary  and  indis- 
pensable parties;^  others  may  be  proper  parties,"  but 
their  non-joinder  can  not  be  objected  to.'*  All  the  persons 
interested  in  the  defense  of  the  suit  should  be  joined  as 
defendants,  except  in  those  cases  in  which  there  is  \dr- 
tual  representation  within  the  rule  already  discussed," 
or  the  court  can  completely  determine  the  controversy 
between  the  parties  without  affecting  their  interests  ;^'^ 
but  where  the  interests  of  parties  already  made  defend- 
ants and  other  persons  not  before  the  court  are  insepar- 
able, and  the  court  for  that  reason  is  unable  to  make  a 
complete  determination  of  the  controversy,  the  non-join- 
der of  such  other  parties  is  an  insuperable  objection  to 
proceeding  with  the  suit.^^  The  court  may  order  such 
parties  to  be  brought  in  ;^-  and  if  that  is  not  done  the  suit 
must  be  dismissed.^^ 

§  685.    Time  and  mode  of  objecting.    An  objection 

for  non-joinder  of  parties  defendant  must  always  be 
timely  made,  and  is  usually  required  to  be  before  an 
answer  on  the  merits,^  otherwise  the  objection  is  deemed 

4  See,  ante,  §  644,  footnotes  4-7.  9  See,  ante,   §  644. 

'<  See,  ante,  §  681.  lo  See,  ante,  §  639;  see,  also,  20 

6  See,  ante,  §§  637-639.  R.  C.  L.  704,  footnote  5. 

7  See,  ante,  §  636.  ii  See   authorities,   20    R.   C.    L. 
s  Delaware  County  v.  Diebold  704,  footnote  3. 

S.  &  L.  Co.,  133  U.  S.  473,  33  L.  Ed.  12  See,  ante,  §§  648,  649. 

674,  10  Sup.  Ct.  Rep.  399;  Stephen  is  See  20  R.  C.  L.  704,  footnote  4. 

V.  Beall,  89  U.  S.   (22  Wall.)   329,  1  Pascal  v.  Duros,  8  Rob.    (La.) 

22   L.   Ed.  786.  112,  41  Am.  Dec.  294. 

926 


Ch.  v.]  NOX-JOIXDER — OBJECTION  FOR.  §  685 

to  have  been  waived.-  The  method  in  which  objection 
to  be  taken  for  non-joinder  of  necessary  parties  has  been 
sufficiently  discussed  in  a  previous  section,  where  the 
objection  is  taken  by  a  defendant;^  but  it  is  the  province 
of  the  court  to  object  on  its  own  initiative,  whenever  it 
ascertains  that  some  parties  who  are  necessary  to  a  com- 
plete determination  of  the  controversy  are  not  before  the 
court,^  and  to  order  such  parties  brought  in.^  Where 
the  rights  of  the  parties  not  before  the  court  are  inti- 
mately connected  with  the  subject-matter  in  controversy, 
so  that  a  final  judgment  can  not  be  rendered  or  a  final 
decree  entered  without  materially  affecting  their  inter- 
ests, the  objection  may  be  taken  at  any  time  on  the  hear- 
ing, or  on  appeal  or  error.''  The  courts  will,  ex  officio, 
take  notice  of  such  omission,  and  rule  accordingly.' 
Where  the  persons  omitted  were  merely  formal  parties, 
and  not  indispensable  to  a  complete  decision  of  the  contro- 
versy upon  the  merits,  it  will  be  too  late  to  make  the 
objection  even  at  the  hearing  of  the  cause.^ 

As  to  form  of  objection  for  non-  v.  Seaton,  26  U.  S.  (1  Pet.)  7  L.  Ed. 

joinder  of  parties  defendant  gen-  152;  Coiron  v.  Millaudon,  60  U.  S. 

erally,  see  note  43  Am.   Dec.  259.  (19  How.)  113,  15  L.  Ed.  575;  Hoe 

As  to   how  and  when   objection  v.  Wilson,  76  U.  S.  (9  Wall.)   501. 

taken    for   non-joinder    of    parties  19    L.    Ed.    672;     Susquehanna    & 

defendant,  see  note   43   Am.    Dec.  W.  V.  R.  Co.,  78  U.  S.  (11  Wall.) 

gg4  172,  20   L.   Ed.  179,  PI.  638,  860. 

-  -o-    .     .      ^     o  Administrator  only  defendant  in 

2  See,  ante,  §683,  footnote  8.  ._         ^  •',.,,. 

a  suit  to  enforce  a  mechanics   lien, 

3  See,  ante,  §  683.  judgment  for  plaintiff  must  be  re- 

4  See,  supra,  §§637-639.  versed    for    want    of    necessary 

5  As  to  bringing  in  new  parties  parties  defendant. — Hughes  v.  Tor- 
and  the  method  thereof,  see,  ante,  gerson,  96  Ala.  346,  39  Am.  St.  Rep. 
§§  647-650.  105,  16  L.  R.  A.  60,  11  So.  209. 

6  Hughes  V.  Torgerson,  96  Ala.  7  Prentice  v.  Campbell,  19  111. 
346,  38  Am.  St.  Rep.  105,  16  L.  R.  A.  323;  Gerard  v.  Bates,  124  111.  150, 
600,  11  So.  209;  Spear  v.  Campbell,  7  Am.  St.  Rep.  350,  16  N.  E.  258. 
5  111.  (4  Scam.)  426;  Prentice  v.  sid.;  see,  ante,  §683,  footnotes 
Kimball,  19  111.  323;    Gerard  v.  7  and  8. 

Bates,  124  111.  150,  7  Am,  St.  Rep.  See,  also,  discussion  and  author- 

350,  16  N.  E.  258;  Mechanics'  Bank      ities,  20  R.  C.  L.  705,  §  45. 

927 


§  686  CODE  PLEADING  AND   PRACTICE.  [Pt.  Ill, 

§  686.  Persons  severally  bound  on  same  obligation  or 
INSTRUMENT.  Under  the  provisions  of  the  California  pro- 
cedural code  persons  severally  liable  upon  the  same  obli- 
gation or  instrument,  including  the  parties  to  bills  of 
exchange  and  promissory  notes,  and  sureties  on  the  same 
or  separate  instruments,  may  all  or  any  of  them  be 
included  in  the  same  action,  at  the  option  of  the  plaintiff ; 
and  all  or  any  of  them  join  as  plaintiffs  in  the  same 
action,  concerning  or  affecting  the  obligation  or  instru- 
ment upon  which  they  are  severally  liable.^  Thus,  where 
the  same  person  is  insured  by  two  or  more  insurers  sep- 
arately in  respect  to  the  same  subject  and  interest,  such 
person,  or  the  payee  under  the  policies,  or  the  assignee 
of  the  cause  of  action,  or  other  successor  in  interest  of 
such  assured  or  payee,  may  join  all  or  any  of  such  insur- 
ers in  a  single  action  for  the  recovery  of  a  loss  under  the 
several  policies,  and  in  case  of  judgment  a  several  judg- 
ment must  be  rendered  against  each  of  such  insurers 
according  as  his  liability  shall  appear.^  This  provision 
of  the  code  applies  to  written  obligations  only,^  such  as 
bonds,^  bills  of  exchange,  and  promissory  notes  ;^'  and 
onlj^  to  cases  of  joint  and  several  contracts.® 

1  Kerr's  Cyc.  Cal.  Code  C  i  v.  against  the  county  involving  the 
Proc,  §  383.  See  Powell  v.  Pow-  validity  of  such  bonds.  —  Hutchi- 
ell,  48  Cal.  235;  London,  Paris  &  son  v.  Burr,  12  Cal.  103;  Patterson 
American  Bank  v.  Smith,  101  Cal.  v.  Yuba  County  Supervisors,  12 
415,    35    Pac.     1027;     Webaux    v.  Cal.  106. 

Grinnell   Live-Stock   Co.,    9    Mont.  In  Oregon  sureties  on  executor's 

154,  29  Pac.  492.  bond  are  not  to  be  sued  until  de- 

2  Kerr's  Cyc.  Cal.  Code  C  i  v.  fault  in  probate  court. — Hamlin  v. 
Proc,  §  383.  Kennedy,  2  Ore.  91. 

■'!  Tibbets    v.    Percy,    24    B  a  r  b.  In    Dakota  the  same  rule  has 

(N.  Y.)   39;   Spencer  v.  Wheelock,  been    declared. — Territory   ex   rel. 

11  N.  Y.  Leg.  Obs.  329.  Hall  v.  Bramble,  189,  202,  5  N.  W. 

4  People  V.  Hartley,  21  Cal.  585,  945. 

82  Am.  Dec.  758;   People  v.  Love,  5  Brainard  v.  Jones,  11  How.  Pr. 

25   Cal.   530.  (N.  Y.)  569. 

Holders  of  county  bonds  should  6  Humphreys   v.    Crane,    5   Cal. 

be  made  parties  defendant  in  suit  173;   Stearns  v,  Auirre,  6  Cal.  176. 

928 


ch.  v.]  JOINTLY  AND  SEVERALLY  LIABLE.  §  686 

Persons  jointly  and  severally  liable  may  be  sued  to- 
gether or  separately,  at  the  option  of  the  plaintiff.'  In 
actions  on  joint  and  several  obligations,  an  administrator 
can  be  joined  with  the  sur\ivor.^  To  create  a  several 
liability,  express  words  are  necessary.^  In  New  York,  it 
seems  the  plaintiff  may  sue  one  or  all  of  the  obligors  of 
a  joint  and  several  bond ;  but  in  strictness  of  law,  he  can 
not  sue  an  intermediate  number.^^  The  practice  is,  how- 
ever, different  in  California,  where  one  or  all  of  any 
intermediate  number  may  be  made  defendants,  at  the 
option  of  the  plaintiff.^^  So,  also,  in  cases  of  a  promis- 
sory note,  endorsers  thereon  and  a  mortgage  securing 
the  same;^-  only  one  action  lies  for  the  recovery  of  tlie 
debt  and  the  enforcement  of  the  right  secured  by  mort- 
gaged^ Although  the  several  parties  to  a  bill  or  note 
may  be  sued  in  one  action,  yet  their  being  so  sued  does 
not  make  them  jointly  liable,^^  or  joint  debtors.^"*  The 
common-law  rule,  that  where  defendants  are  sued  on  a 
joint  contract,  recovery  must  be  had  against  all  or  none 
is   modified   by  the   Calif ornia^^   and   other   procedural 

7  See  1  Chitty's  Pleading  (16th  12  Eastman  v.  Truman,  24  Cal. 
Am.  ed.),  pp.  49-50.                                  379,  382. 

8  See,  ante,  §  654.  13  Eastman  v.   Truman,   24   Cal. 

0  Brady  v.  Reynolds,  13  Cal.  31.      379,  382.    See  Cederholra  v.  Loof- 
loCarman  V.  Plass,  23N.  Y.  286;       borrow,   2   Idaho   176,   178,   9   Pac. 

Loomis  V  Brown,  16  Barb.  (N.  Y.)  641;    Bacon   v.   Reynould,   4   Utah 

325;  Allen  v.  Fosgate,  11  How.  Pr.  357.  360,  10  Pac.  481,  11  Pac.  510. 

(N.   Y.)    218;    Brainard    v.    Jones,  14  Alfred    v.    Watkins,    1    N.    Y. 

11  How.  Pr.    (N.  Y.)    569;    Phalen  Code  Rep.  (N.  S.)  343,  1  Edm.  Sel. 

V.  Dingee,  4  E.  D.   Smith   (N.  Y.)  Cas.  369. 

379;  Leroy  v.  Shaw,  9  N.  Y.  Super.  isKelsey  v.  Bradbury,  21  Barb. 

Ct.   Rep.    (2   Duer)    626;    Minor  v.  (N.   Y.)    351;    Farmers"   Bank   v. 

Mechanics'  Bank,  26  U.  S.  (1  Pet.)  Blair,  44  Barb.   (N.  Y.)    642.     See 

46,  7   L.   Ed.  47;    Hines  v.   Smith,  Nelson   v.   Webster,    72    Neb.   ?.?,2. 

41  U.  S.    (16  Pet.)    303,   10   L.   Ed.  117  Am.  St.   Rep.  799,  68   L.   R.  A. 

973.  513,   100   N.  W.   411. 

11  See  footnote  1  and  text,  this  See,  also,  note  68   L.  R.  A.  513. 

section;    Lewis   v.    Clark,    18    Cal.  10  See  Kerr's  Cyc.  Cal.  Code  Civ. 

400;    People  v.  Love,  25  Cal.  520.  Proc,  §989. 

1  Code  PI.  and  Pr.— 59  029 


^687  CODE  PLEADING  -AND  PRACTICE.  [Pt.  Ilf, 

codes. ^^  But  one  of  two  joint  debtors,  not  served  with 
process,  is  not  a  proper  party  defendant  in  an  action 
upon  the  judgment  against  the  party  on  whom  service 
of  process  was  made;^^  and  where  alleged  partners  are 
sued  and  only  one  served  the  judgment  is  binding  only 
upon  the  partner  served  and  his  interest  in  the  partner- 
ship property.^**  So,  where  joint  debtors  reside  in  dif- 
ferent states,  they  may  be  sued  separately.-*^  It  seems 
that  different  parties,  liable  for  the  same  sum,  but  under 
different  contracts,  can  not  be  joined  in  the  same  ac- 
tion,-^— so  held  in  New  York,  as  to  a  guaranty  w^ritten 
under  a  promissory  note,--  and  that  the  guarantor  can 
not  be  sued  in  the  same  action  with  the  maker.-^  It  was 
there  held,  also,  that  the  liability  of  a  purchaser  and  his 
guarantor,--'  and  of  a  lessee  and  his  surety,-^  is  several. 

§  687.  Persons  not  bound.  In  an  action  for  the  breach 
of  a  contract,  where  the  evidence  justifies,  a  recovery 
may  be  had  against  one,  or  the  other,  or  both  of  the 
parties  made  defendant;  hence  one  defendant,  who  is 
bound,  can  not  be  heard  to  complain  that  his  codef  endant 

17  See  People  v.  Frisbie,  18  Cal.  298;  Allen  v.  Fosgate,  11  How.  Pr. 

42;   Lewis  v.  Clarkin,  18  Cal.  399.  (N.  Y.)  218. 

isTay    V.    Hawley,    39    Cal.    93.  22  Brewster  v.  Silence,  8  N.  Y. 

.-  „  207,  affirming  11  Barb.  144;  Draper 

V.  Snow,  20  N.  Y.  331,  75  Am.  Dec. 

19  Stewart  v.  Spalding,  72  Cal.  ^^g.  ^j^^.^^  ^  Watkins,  1  N.  Y. 
264,  267,  13  Pac.  661;  Kleinschmidt  ^^^^  ^^^  ^  S  343^  ^  ^^^^  S^l 
V.  Freeman,  4  Mont.  400,  407,  2  ^^^  ^^^.  ^^^^^^  ^  Bradbury,  21 
Pac.  275;  Knatz  v.  Wise,  16  Mont.  ^^^^  ^^  Y.)  531;  Church  v. 
555,  599,  41  Pac.  710;  Noyes  v.  Bar-  j.^^^^_  ^9  Barb.  (N.  Y.)  4S6. 
nard,  63  Fed.  786.  ^.3  ^^^^^  ^   Fosgate,  11  How.  Pr. 

20  Brown    v.    Birdsall,    29    Barb.  (N.  Y.)  213. 

(N.  Y.)  549.  24  Leroy  v.  Shaw,  9  N.  Y.  Super. 

21  See  Brown  v.  Curtis,  2  N.  Y.  Ct.  Rep.  (2  Duer)  626;  Spencer  v. 
207,  affirming  2  Barb.  51;  White  Wheelock,  11  N.  Y.  Leg.  Obs.  329. 
V.  Low,  7  Barb.  (N.  Y.)  704;  De  California  rule  different  under 
Ridder  v.  Schennerhorn,  10  Barb.  the  code  provision.  See  footnote 
(N.  Y.)  638;  Barker  v.  Cassidy,  16  1  and  text,  this  section. 

Barb.  (N.  Y.)  177;  Glen  Cove  Mut.  2.^.  Phalen  '  v.    Dingee,    4    E.    D. 

Ins.  Co.  v.  Harold,  20  Barb.  (N.  Y.)       Smith  (N.  Y.)  379. 

930 


•h.  v.] 


PRINCIPAL  AND  AGENT. 


§  688 


is  not  bound  by  the  contract  sued  on.  Thus,  where  a  min- 
ing company  and  its  manager  are  both  sued  as  principal 
for  damages  for  breach  of  contract,  the  company  has  no 
ground  to  complain  because  the  manager,  who  is  not 
bound,  is  made  a  party  to  the  suit,  if  in  fact  the  company 
is  bound  by  the  contract.^ 

§  688.  Principal  and  agent.  The  general  rule  of  law 
is  that  a  principal,  although  himself  innocent,  is  liable 
for  any  fraud  or  misconduct,  to  the  injury  of  a  third 
party,  of  his  agent  acting  within  the  scope  of  his  au- 
thority;^ but  not  for  acts  and  representations  of  the  agent 


1  Buffati  V.  Soci6t§  Anonyme  des 
Mines  de  Lexington,  10  Utah  386, 
37  Pac.  591. 

1  Wolfe  V.  Paugh,  101  Ind.  293; 
Du  Souchet  v.  Dutcher,  113  Ind. 
249,  15  N.  E.  459.  IOWA— Hol- 
lingsworth  v.  Holbrook,  80  Iowa 
151,  20  Am.  St.  Rep.  411,  45  N.  W. 
561;  John  Gund  Brewing  Co.  v. 
Peterson,  130  Iowa  301,  106  N.  W. 
741.  NEB.— Fitzgerald  v.  Fitzger- 
ald &  M.  Constr.  Co.,  44  Neb.  463, 
62  N.  W.  899.  N.  Y.— Thomas  v. 
Winchester,  6  N.  Y.  397,  57  Am. 
Dec.  455;  Thompson  v.  Supreme 
Tent  K.  M.,  189  N.  Y.  301,  121  Am. 
St.  Rep.  879,  12  Ann.  Gas.  552,  13 
L.  R.  A.  (N.  S.)  318,  82  N.  E.  141; 
Hunter  v.  Hudson  River  Iron  & 
Machine  Co.,  20  Barb.  493;  Adams 
V.  Cole,  1  Daly  147;  Smith  v. 
Reynolds,  8  Hun  128;  Trankla  v. 
McLean,  18  Misc.  221,  41  N.  Y. 
Supp.  385.  OKLA.— Fidelity  Fund- 
ing Co.  V.  Vaughn,  18  Okla.  13,  10 
L.  R.  A.  (N.  S.)  1123,  90  Pac.  34. 
S.  C— Reynolds  v.  Witte,  13  S.  C. 
5,  36  Am.  Rep.  678;  Cobb  v.  Colum- 
bia &  G.  R.  Co.,  37  S.  C.  194.  15 
S.  E.  878;  Rucker  v.  Smoke,  37 
S.  C.  377,  34  Am.  St.  Rep.  758,  16 
S.    E.   40;    Whaley   v.   Duncan,   47 


S.  C.  139,  25  S.  E.  54;  Hutchinson 
V.  Rock  Hill  Real  Estate  &  Loan 
Co.,  65  S.  C.  45,  43  S.  E.  295; 
Mitchell  V.  Leech,  69  S.  C.  413,  104 
Am.  St,  Rep.  811,  66  L.  R.  A.  723, 
48  S.  E.  290;  Williams  v.  Tolbert, 
76  S.  C.  217,  56  S.  E.  908;  Williams 
V.  Tolbert.  76  S.  C.  211.  56  S.  E. 
908;  Fields  v.  Lancaster  Cotton 
Mills,  77  S.  C.  549,  122  Am.  St. 
Rep.  593,  11  L.  R.  A.  (N.  S.)  821, 
58  S.  E.  608;  Stevenson  Co.,  J.  C, 
V.  Eethea,  79  S.  C.  492,  61  S.  E.  99; 
Brown  v.  American  Tel.  «S:  Tel.  Co., 
82  S.  C.  173,  63  S.  E.  744;  Green  v. 
People's  Warehouse  Co.,  85  S.  C. 
44,  67  S.  E.  14,  sub  nom.  Green  v. 
Ervin,  27  L.  R.  A.  (N.  S.)  1015. 
TEX. — Thompson  v.  Grand  Inter- 
national Brotherhood  L.  E.,  41  Tex. 
Civ.  App.  189,  91  S.  W.  834.  UTAH 
— Lewis  V.  Mammoth  Min.  Co.,  33 
Utah  273,  15  L.  R.  A.  (N.  S.)  439, 
93  Pac.  732.  WIS.— Matteson  v. 
Rice,  116  Wis.  328,  92  N.  W.  1109. 
FED.— Mclntire  v.  Pryor,  173  U.  S. 
38,  43  L.  Ed.  006,  19  Sup.  Ct.  Rep. 
352;  Pacific  Postal  Tel.  Cable  Co., 
2  Bank  of  Palo  Alto.  48  C.  C.  A. 
413,  109  Fed.  369,  affirming  103 
Fed.  841. 

As   to    liability    of    principal    for 


931 


s^688 


CODE   PLEADING   AND   PRACTICE. 


[Pt.  Ill, 


while  acting  in  matters  beyond  the  scope  of  his  authority. - 
Thus,  where  an  agent,  to  induce  a  third  person  to  enter 
into  a  contract,  makes  a  promise  which  he  has  no  inten- 
tion of  performing,  and  the  principal  accepts  the  benefits 
of  the  contract  without  knowledge  of  the  false  promise, 
the  third  person  having  no  knowledge  or  notice  of  the 
falsity  of  the  promise,  the  principal  will  not  be  entitled, 
on  discovering  the  fraud  of  his  agent,  to  a  rescission  of 
the  contract.^  Wliere  the  principal  is  known,  he  alone  is 
liable  ;*  but  an  agent  may  render  himself  personally  liable 
by  not  disclosing  the  name  of  his  principal,^  or  by  signing 
his  ovra  name  and  merely  adding  a  descriptive  word.® 
If  on  the  face  of  an  instrument  not  under  seal,  executed 
by  an  agent  with  competent  authority,  by  signing  his  own 
name  simply,  it  appears  that  the  agent  executed  it  in 


torts  and  fraud  of  agent,  see  note 
88  Am.  St.  Rep.  795. 

As  to  liability  of  officers  of  cor- 
poration  for  misfeasance  or  non- 
feasance of  agent,  etc.,  of  corpora- 
tion, see  note  48  Am.  St.  Rep.  913- 
928. 

Alteration  of  chattel  mortgage 
by  agent  authorized  to  take  secur- 
ity for  debt,  avoids  the  mortgage 
in  the  hands  of  the  principal. — 
Rollings  worth  v.  Holbrook,  8  Iowa 
151,  20  Am.  St.  Rep.  411,  45  N.  W. 
561. 

But  an  alteration  of  a  note  by 
an  agent  not  authorized  to  take 
notes  or  make  settlements,  does 
not  invalidate  the  note  in  the 
hands  of  the  principal. — Kingan  v. 
Silvers,  13  Md.  App.  SO,  37  N.  E. 
413. 

2  Marsh  v.  South  Carolina  R. 
Co.,  56  Ga.  274;  Kingan  v.  Silvers, 
13  Ind.  App.  80,  37  N.  E.  413;  New 
York  Life  Ins.  &  Trust  Co.  v. 
Beebe,  7  N.  Y.  364;  Mechanics' 
Bank  v.  New  York  &  N.  H.  R.  Co., 


13  N.  Y.  599,  affirming  11  N.  Y. 
Super.  Ct.  Rep.  (4  Duer)  480,  570; 
Societe  des  Mines  D' Argent  et 
Fonderies  de  Bingham  v.  Mackin- 
tosh, 5  Utah  5C8,  18  Pac.  363. 

3  Schultz  V.  McLean,  93  Cal.  329, 
28  Pac.  1053,  1060. 

4  Conro  V.  Fort  Henry  Iron  Co., 
12  Barb.  (N.  Y.). 

As  to  liability  of  principal  on 
negotiable  paper  executed  by 
agent,  see  note  21  L.  R.  A.  (N.  S.) 
1046-1087. 

5  New  York  Life  Ins.  Co.  v.  Mar- 
tindale,  75  Kan.  142,  121  Am.  St. 
Rep.  362,  21  L.  R.  A.  (N.  S.)  1045. 
88  Pac.  559;  Cobre  v.  Sturgess,  1 
Hilt.  (N.  Y.)  160;  Bakeman  v. 
Mackay,  1  Hilt.  (N.  Y.)  266;  Nason 
v.  Cockroft,  10  N.  Y.  Super.  Ct. 
Rep.  (3  Duer)  366. 

6  Melone  v.  RufBn,  129  Cal.  514, 
523,  79  Am.  St.  Rep.  127,  134,  62 
Pac.  93;  Albany  Furniture  Co.  v. 
Merchants'  Nat.  Bank,  17  Ind.  App. 
535,  60  Am.  St.  Rep.  178,  47  N.  i:. 
227;  Taylor  v.  Reger,  18  Ind.  App. 


932 


ell.  v.] 


JOINT  LIABILITY'  PULVCIPAL,   ETC. 


§688 


behalf  of  the  principal,  the  principal  and  not  the  agent  is 
bound/  Where  a  party  makes  a  purchase  from  an  inno- 
cent agent,  who  afterwards  parts  with  the  money  of  liis 
principal,  and  the  purchase  avails  the  purchaser  nothing, 
no  legal  right  of  complaint  will  lie  against  the  agent. ^ 
Principal  and  agent  are  jointly  liable  for  an  injury 
caused  by  negligence  of  the  agent. ^^   An  agent  is  liable 


470,  63  Am.  St.  Rep.  352,  48  N.  E. 
262;  Matthews  v.  Dubuque  Mat- 
tress Co.,  87  Iowa  246,  19  L.  R.  A. 
676,  54  Pac.  225;  Day  v.  Ramsdell, 
90  Iowa  733,  57  N.  W.  630;  Bank 
of  Stratton  v.  Dixon,  105  Iowa  151, 
74  N.  W.  919;  Gavazza  v.  Plum- 
mer,  53  Wash.  14,  42  L.  R.  A. 
(N.  S.)  1,  101  Pac.  370;  Nunne- 
macher  v.  Poss,  116  Wis.  449,  92 
N.  W.  377. 

Agent  personally  bound  by  a 
contract  reciting  that  "I  (giving 
his  name)  treasurer"  of  a  desig- 
nated corporation,  "do  hereby 
agree"  signed  by  his  own  name,  to 
which  he  affixes  the  descriptive 
word  "Treas."  —  Gavazza  v.  Plum- 
mer,  53  Wash.  14,  42  L.  R.  A. 
(,N.  S.)  1,  101  Pac.  370. 

See  authorities  fully  collected  in 
note  42  L.  R.  A.  (N.  S.)  1-63. 

But  an  officer  of  a  corporation 
does  not  make  himself  personally 
liable  by  signing  its  name,  adding 
his  individual  name  and  descrip- 
tive word  or  abbreviation  of  the 
office  he  holds. — Pease  v.  Globe 
Realty  Co.,  141  Iowa  482,  42  L.  R.  A, 
(N.  S.)   6,  119  N.  W.  975. 

7  CAL.— Haskell  v.  Cornish,  13 
Cal.  45;  Shover  v.  Ocean  Min.  Co., 
21  Cal.  45;  Hall  v.  Crandall,  29 
Cal.  571,  89  Am.  Dec.  666;  Love  v. 
Sierra  Nevada  Lake  Water  &  Min. 
Co.,  32  Cal.  639,  654,  91  Am.  Dec. 
602;  Lander  v.  Castro,  43  Cal.  501; 
Blanchard    v.    Kaull,    44    Cal.    450. 


452;  Farmers'  &  Mechanics'  Bank 
of  Sav.  v.  Colby,  64  Cal.  352,  354, 
28  Pac.  118;  Bean  v.  Pioneer  Min. 
Co.,  66  Cal.  451,  455,  56  Am.  Rep. 
108,  6  Pac.  86;  Senter  v.  Monroe, 
77  Cal.  347,  350,  351,  19  Pac.  580. 
IOWA— Capital  Sav.  Bank  &  T. 
Co.  V.  Swan,  100  Iowa  722,  69  N.  W. 
1065.  NEB.— Cole  v.  O'Brien,  34 
Neb.  68,  33  Am.  St.  Rep.  616,  51 
N.  W.  316.  NEV.— Gillig  v.  Lake 
Bizler  Road  Co.,  2  Nev.  214,  223; 
Schaeffer  v.  Bedwell,  9  Nev.  209, 
211.  PA.— Williams  v.  Hippie,  17 
Pa.  Super.  Ct.  Rep.  85;  Williams  v. 
Hippie,  8  Del.  Co.  Rep.  200.  WIS.— 
Germania  Nat.  Bank  v.  Mariner, 
129  Wis.  547,  109  N.  W.  575. 

See  notes  19  L.  R.  A.  676;  21 
L.  R.  A.  (N.  S.)  1064. 

sEngels  v.  Heatly,  5  Cal.  135: 
Simmonds  v.  Long,  80  Kan.  155,  23 
L.  R.  A.  (N.  S.)  553,  101  Pac.  1070. 

As  to  right  to  recover  from 
agent  money  paid  to  him  for  his 
principal,  see  note  23  L.  R.  A. 
(N.  S.)  553. 

0  Kerr's  Cyc.  Cal.  Civ.  Code. 
§  2338. 

10  See  Berghoff  v.  McDonald.  87 
Ind.  549;  Malone  v.  Morton,  84  Mo. 
436;  Martin  v.  Benoist,  20  Mo.  App. 
262;  Phelps  v.  Waite,  30  N.  Y.  78. 

As  to  liability  of  agents  and 
officers  of  corporation  for  negli- 
gence, see  note  48  Am.  St.  Rep. 
913. 


933 


§  689  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

to  a  third  person  for  personal  injuries  caused  by  mis- 
feasance of  the  agent,^^  but  not  for  those  caused  by  his 
nonfeasance/^  although  the  contrary  is  held.^^ 

§  689.  Quo  WARRANTO P ARTIES  PLAINTIFF  AND  DEFEN- 
DANT. At  common  law,  a  proceeding  by  writ  of  quo  war- 
ranto was  a  civil  remedy  available  to  the  state  or  sov- 
ereign only;  and  a  proceeding  by  information  in  the 
nature  of  a  quo  warranto  was  a  criminal  proceeding  to 
punish  for  usurpation  of  a  public  office  or  a  franchise, 
and  could  be  maintained  by  the  state  only.  In  the  various 
jurisdictions  in  this  country,  in  the  absence  of  a  statute 
conferring  upon  individuals  the  power  to  sue  out  a  writ 
of  quo  warranto  or  an  information  in  the  nature  of  a 
quo  warranto,  the  state  alone  can  be  the  moving  party  in 
such  a  proceeding.^  It  is  the  function  of  the  attorney- 
general,  or  other  law  officer  under  statute,  as  the  legal 
representative  of  the  state,  to  determine  (1)  whether 
a  public  office  or  franchise  has  been  usurped,  and 
(2)  whether  the  public  welfare  will  be  promoted  by  an 
action  to  oust  the  usurper;-  and  an  information  in  the 
name  of  the  state  on  the  relation  of  the  attorney-general, 
founded  upon  and  supported  by  the  affidavit  of  the  person 
seeking  the  benefit  of  the  remedy,  is  sufficient  in  form, 

11  Mayer  V.  Thompson-Hutchison      Am.  St.  Rep.  913,  28  L.  R.  A.  43.'). 


Bldg.  Co.,  104  Ala.  611,  53  Am,  St 
Rep.  88,  28  L.  R.  A.  433,  16  So 
620;  Greenberg  v.  Whitcomb  Lum 
her  Co.,  90  Wis.  225,  48  Am.  St 
Rep,  911,  28  L,  R.  A.  439,  63  N.  W 
93. 

12  Greenberg  v.  Whitcomb  Lum 
ber  Co.,  90  Wis.  225,  48  Am.  St 
Rep.  911,  28  L.  R.  A.  439,  63  N.  W 


1  See  discussion  in  note  Ann. 
Cas.  1918D,  215. 

Attorney-general,  as  the  law  of- 
ficer of  the  state,  can  not,  by  con- 
sent, confer  upon  a  private  person 
jurisdiction  to  maintain  the  pro- 
ceeding, in  the  absence  of  statu- 
tory provisions  conferring  such  a 
right.  —  See   State  Railroad   Com- 


93.  mission  v.  People  ex  rel.  Denver  & 

13  Mayer  V.  Thompson-Hutchison  R.    G.    R.    Co.,    44    Colo.    345,    22 

Bldg.  Co.,  104  Ala.  611,  53  Am.  St.  L.  R.  A.  (N.  S.)  810,  98  Pac.  7. 

Rep.  88,  28  L.  R.  A.  433,  16  So.  620.  2  State   Railroad   Commission  v. 

As  to  liability  of  agents  to  third  People  ex  rel.  Denver  &  R.  G.  R. 

persons    for   injuries    received  Co.,  44  Colo.  345,  22  L.  R.  A.  (N.  S.) 

through  their   negligence,   see   48  810,  98  Pac.  7, 

03d- 


eh.  v.] 


QUO  WARRANTO — PARTIES. 


§681) 


without  joining  such  person  formally  as  a  party  to  the 
information  and  proceeding.''  The  writ  of  quo  warranto, 
or  an  information  in  the  nature  of  a  quo  warranto,  is  a 
writ  of  grace  and  not  of  right,  and  can  be  obtained  only 
by  the  permission  of  the  attorney-general,  a  private  per- 
son having  no  right  to  the  writ  to  adjudicate  his  right 
to  an  office,^  and  the  like,  in  the  absence  of  statutory  pro- 
vision granting  that  right, — as  discussed  below. 

Private  persons  may  prosecute  information  in  the 
nature  of  quo  warranto,  under  statutory  provision,  in  the 
name  of  the  attorney-general,  w^ith  the  consent  of  the 
court,^  when  the  attorney-general  neglects  or  refuses  to 
act,  to  determine  the  right  to  hold  a  public  office  and 
receive  the  emoluments  thereof;  and  in  some  jurisdic- 
tions to  determine  the  right  to  exercise  a  franchise. 
Under  some  of  the  statutes  any  citizen  may  prosecute 
the  proceeding  without  being  himself  a  claimant  to  the 

3  state  V.  Brooks  (Del.),  74  Atl.      Union  Investment  Co.,  7  S.  D.  51, 


37;  State  ex  rel.  Mitchell  v.  Horan. 
22  Wash.  197,  60  Pac.  135;  State 
ex  rel.  Nelson  v.  Mott,  111  Wis.  19, 
86  N.  W.  569. 

As  to  requirements  under  statu- 
tory provision,  see  note  Ann.  Cas. 
1918D,  215. 

Claimant  to  the  office  need  not 
Ijring  the  suit. — State  ex  rel.  Mit- 
chell V.  Horan,  22  Wash.  197,  60 
Pac.  135. 

Usurpation  of  franchise  charged 
it  is  immaterial  whether  the  pros- 
ecution be  stj'led  as  in  the  name 
of  the  state,  alone,  or  in  the  name 
of  the  state  upon  the  relation  of  a 
designated  officer  or  private  citi- 
zen.— State  ex  rel.  Fullerton  v.  Des 
Moines  City  R.  Co.,  135  Iowa  694, 
109  N.  W.  867. 

— In  South  Dakota  the  proceed- 
ing must  be  in  the  name  of  the 
state  alone  as  the  real  party  in 
interest. — State  ex  rel.  Gilbert  v. 


63  N.  W.  232. 

4  De  Vigil  V.  Stroup,  15  N.  M. 
544,  110  Pac.  830;  Lamoreaux  v. 
Ellis,  89  Mich.  146,  50  N.  W.  812 
(candidate  receiving  next  to  high- 
est number  of  votes  can  not,  on 
his  own  behalf,  maintain  the  pro- 
ceeding). 

Application  by  private  citizen  to 
supreme  court  not  granted. — See 
State  ex  rel.  Frish  v.  Noble,  16 
N.  D.  168,  125  Am.  St.  Rep.  628, 
112  N.  W.  141. 

5  Claimant  entitled  to  maintain 
proceedings  when  public  law  of- 
ficer refuses  to  prosecute  proceed- 
ings to  try  title  to  office. — State 
ex  rel.  Kellogg  v.  Barr,  90  Neb. 
766,  134  N.  W.  52.5. 

Discretion  of  court  to  allow  tbe 
prosecution  by  private  individual 
is  a  sound  discretion,  and  the  or- 
der granting  the  leave  is  not  open 
to  dispute  on  the  trial. — State  ex 


935 


§  089 


CODE   PLEADING   AND    PKACTICE. 


[Pt.  Ill, 


office,"  or  entitled  to  hold  sueli  office,  as  against  an  incum- 
bent not  entitled  to  hold  the  office,'  provided  he  is  a  free- 
holder, elector,^  and  a  resident  of  the  territory  or  district 
in  which  the  office  is  exercised  f  althougli  there  are  some 
statutes  under  which  such  a  relator  must  have  an  in- 
terest^" personal  and  peculiar  to  himself^ ^  before  ho  is 
entitled  to  exercise  the  right,  and  he  must  have  no  other 
remedy.^-  But  under  no  statute  is  a  private  person  au- 
thorized to  maintain  such  proceeding  for  the  purpose  of 
protecting  his  private  interests  rather  than  safeguard 
the  public  welfare,^^  except  in  the  class  of  cases  already 
referred  to.^^ 

Defendants — In  proceedings  to  try  title  to  office,  public 
or  private,  may  be  joined  in  those  cases  in  which  the 
rights  involved,  and  the  proofs  to  sustain  such  rights,  are 
substantially  the  same,^^ — e.  g.,  where  the  proceedings 


rel.     Heffelfinger    v.    Brown,    144 
Iowa  739,  123  N.  W.  779. 

In  exceptional  cases  may  be 
granted  without  consent  of  attor- 
ney-general.— State  ex  rel.  Ruess- 
wig  V.  McDonald,  101  Minn.  349, 
112  N.  W.  278. 

r.  Bonynge  v.  Frank,  89  N.  J.  L. 
239,  Ann.  Cas.  1918D,  211,  98  Atl. 
456. 

T  People  ex  rel.  Bledsoe  v.  Camp- 
bell, 138  Cal.  11,  70  Pac.  918;  Lon- 
doner V.  People  ex  rel.  Barton,  15 
Colo.  557,  26  Pac.  135. 

><  E  1  e  c  t  o  r  whose  property  as- 
sessed by  trustees  of  village  after 
termination  of  existence  of  village. 
— State  ex  rel.  Banta  v.  Greer,  86 
Neb.  88,  124  N.  W.  905. 

Owner  of  agricultural  lands  in- 
cluded within  city  limits,  may 
maintain  quo  warranto  to  deter- 
mine the  validity  of  such  inclu- 
sion, although  not  a  voter  in  the 
city. — State  ex  rel.  Hammond  v. 
Dimond,    44    Neb.    154,    62    N.    W. 


498;   State  ex  rel.  Loy  v.  Mote,  48 
Neb.  683,  67  N.  W.  810. 

9  People  ex  rel.  Barton  v.  Lon- 
doner, 13  Colo.  444,  22  Pac.  764. 

10  In  lov/a  any  citizen  having  an 
interest. — State  ex  rel.  Fullerton 
V.  Des  Moines  City  R.  Co.,  135 
Iowa  694,  109  Pac.  867. 

11  Hudson  V.  Conklin,  77  Kan. 
764,  93  Pac.  585;  State  ex  rel. 
Glenn  v.  Stein,  13  Neb.  529,  14 
N.  W.  481. 

12  State  ex  rel.  McMillan  v.  Sad- 
ler, 25  Nev.  131,  83  Am.  St.  Rep. 
573,  58  Pac.  284. 

13  State  Railroad  Commission  v. 
People  ex  rel.  Denver  &  R.  G.  R. 
Co.,  44  Colo.  345,  22  L.  R.  A.  (N.  S.) 
810,  98  Pac.  7. 

As  to  protection  of  private  inter- 
ests by  quo  warranto,  see  note  22 
L.  R.  A.  (N.  S.)  810. 

1-1  See  cases  in  footnote  8,  this 
section. 

15  People  ex  rel.  Lawson  v.  Stod- 
dard,   34    Colo.    200,   86    Pac.    251; 


936 


ch.  v.] 


QUO  WARRANTO — DEFENDANTS. 


§689 


are  against  a  body  or  board,  as  the  several  members  of 
the  board  of  trustees  of  a  cemetery  association/*' — but 
not  in  those  cases  in  which  the  interests  are  different,  and 
the  evidence  to  support  the  respective  interests  is  not  tlie 
same.^''^ 

In  proceedings  to  decree  void  the  organization  of  a 

towTiship^^  or  other  territorial  unit  of  the  government,  or 
the  incorporation  of  a  city  or  town  or  \dllage;^^  and  to 
enjoin  the  defendants  from  acting  as  officers  thereof,  and 
discharging  the  duties  and  functions  of  officers,  is  proj3- 
erly  brought  against  the  persons  named  as  acting  as 
officers,  without  joining  the  township  or  municipality  as 
defendant;  but  it  has  been  said  that  where  the  munici- 
pality is  made  a  defendant  by  name,  an  omission  to  join 
the  persons  assuming  to  act  as  trustees  or  other  admin- 
istrative officers,  does  not  constitute  a  defect  of  parties 
defendant.-*' 


state  ex  rel.  Dunlap  v.  Stewart,  6 
Houst.  (Del.)  359,  373;  State  v. 
Simkins,  77  Iowa  676,  42  N.  W. 
516;  Dunham  v.  Bright,  85  N.  J.  L. 
391,  90  Atl.  255;  Bonynge  v.  Frank, 
89  N.  J.  L.  237,  Ann.  Cas.  1918D, 
211,  98  Atl.  456;  Armstrong  v. 
State  ex  rel.  Fain,  29  Okla.  161, 
Ann.  Cas.  1913A,  565,  116  Pac.  770; 
State  V.  Kearn,  17  R.  I.  391,  22  Atl. 
322;  Preshow  v.  Dee,  6  Utah  360, 
23  Pac.  763;  State  ex  rel.  Peck  v. 
Riordan,  24  Wis.  484. 

As  to  parties  defendant  in  quo 
warranto,  or  in  proceedings  by  in- 
formation in  the  nature  of  quo 
warranto,  see  Ann.  Cas.  1913A, 
570;  Ann.  Cas.  1918D,  216,  228. 

16  Bonynge  v.  Frank,  89  N.  J.  L.. 
239,  Ann.  Cas.  1918D,  211,  98  Atl. 
456. 

See,  also,  authorities  footnote  8, 
this  section. 


17  People  ex  rel.  Lankford  v. 
Long,  32  Colo.  486,  77  Pac.  251. 

18  Territory  ex  rel.  State's  At- 
torney V.  Armstrong,  6  Dak.  226. 
50  N.  W.  832. 

19  People  ex  rel.  Saunier  v. 
Stratton,  33  Colo.  464.  81  Pac.  245; 
Frisch  v.  Ard,  34  Colo.  66,  81  Pac. 
247. 

See,  also,  authorities  cited  in 
footnote  8,  this  section. 

Municipality  proceded  against  in 
its  name,  admits  its  legal  exis- 
tence.— People  ex  rel.  Prosecuting 
Attorney  v.  South  Park,  City  of, 
34  Wash.  162,  101  Am.  St.  Rep. 
998,  75  Pac.  636.  See  People  ex 
rel.  Attorney-General  v.  Stanford, 
77  Cal.  360,  2  L.  R.  A.  92,  18  Pac. 
85,  19  Pac.  693. 

:.;o  People  ex  rel.  Beltner  v. 
Riverside,  City  of,  66  Cal.  288,  5 
Pac.  350. 


937 


§689 


CODE  PLEADING   AND   PRACTICE. 


[Pt.  Ill, 


In  proceedings  to  vacate  charter  corporation  once 

lawfully  possessed  but  which  has  expired  or  been  for- 
feited,— as  by  failure  to  comply  with  the  requirements  of 
the  statute,  or  for  non-user,-' — the  corporation  is  a  neces- 
sary^^  and,  some  of  the  cases  hold,  the  only  proper  party^^ 
defendant,  the  officers  of  such  corporation  need  not  be 
made  parties  and  served  with  process  f^  and  the  individ- 
ual members  or  stockholders  thereof  are  not  proper  par- 
ties defendant.^^  Where  the  charge  is  the  usurpation  of 
corporate  functions  and  franchise  by  a  body  not  incorpo- 
rated, the  proceedings  must  be  against  the  individuals 
guilty  of  the  usurpation,-*'  as  the  only  proper  parties  de- 
fendant, because  if  the  corporation  is  made  a  party  by  the 
name  under  which  the  acts  complained  of  are  committed, 
its  legal  existence  is  admitted ;-"  although  there  is  author- 


21  People  ex  rel.  Attorney-Gen- 
eral V.  Stanford,  77  Cal.  360,  2 
L.  R.  A.  92,  18  Pac.  85,  19  Pac.  G93. 

Complaint  must  specifically  al- 
lege existence  of  corporation.  — 
People  ex  rel.  Stanford,  77  Cal. 
360,  2  L.  R.  A.  92,  18  Pac.  85,  19 
Pac.  693. 

22  People  V.  Montecito  Water 
Co.,  97  Cal.  276,  33  Am.  St.  Rep. 
172,  32  Pac.  236;  State  ex  rel.  Cald- 
well V.  Lincoln  St.  R.  Co.,  80  Neb. 
333,  352,  14  L.  R.  A.  (N.  S.)  336, 
114  N.  W.  422,  118  N.  W.  326;  State 
ex  rel.  Tyrrell  v.  Lincoln  Traction 
Co.,  90  Neb.  535,  134  N.  W.  278. 

23  Armstrong  v.  State  ex  rel. 
Fain,  29  Olua.  161,  116  Pac.  770; 
State  ex  rel.  Gilbert  v.  Union  In- 
vestment Co.,  7  S.  D.  51,  63  N.  W. 
232. 

Railroad  company  transferring 
right  of  way  after  expiration  of 
time  in  which  it  could  build  its 
road  is  properly  joined  as  a  defen- 
dant wath  the  railroad  corporation 
to  which  right  of  way  transferred. 
— People  ex  rel.  Golconda  North- 


ern R.  Co.  V.  Toledo,  St.  L.  &  N. 
O.  R.  Co.,  280  111.  495,  Ann.  Gas. 
1918D,  224,  117  N.  E.  701. 

24  State  ex  rel.  Coleman  v.  Inner 
Belt  R.  Co.,  74  Kan.  413,  87  Pac. 
696. 

25  State  ex  rel.  Leese  v.  Atchison 
&  N.  R.  Co.,  24  Neb.  143,  8  Am.  St. 
Rep.  164,  38  N.  W.  43. 

26  People  ex  rel.  Attorney-Gen- 
eral V.  Stanford,  77  Cal.  360,  2 
L.  R.  A.  92,  18  Pac.  85,  19  Pac.  693; 
State  ex  rel.  Caldwell  v.  Lincoln 
St.  R.  Co.,  80  Neb.  333,  352,  14 
L.  R.  A.  (N.  S.)  336,  114  N.  W. 
422,  118  N.  W.  326;  State  ex  rel. 
Tyrrell  v.  Lincoln  Traction  Co.,  90 
Neb.  535,  134  N.  W.  278;  Arm- 
strong V.  State  ex  rel.  Fain,  29 
Okla.  161,  Ann.  Cas.  1913A,  565. 
116  Pac.  770. 

27  People  ex  rel.  Attorney-Gen- 
eral V.  Stanford,  77  Cal.  360,  2 
L.  R.  A.  92,  ]8  Pac.  85,  19  Pac.  693. 
See  People  ex  rel.  Prosecuting  At- 
torney V.  South  Park,  City  of,  34 
Wash.  162,  101  Am.  St.  Rep.  998, 
75  Pac.  636. 


938 


eh.  v.]  RECEIVERS — SPECIFIC  PERFORMANCE.  §§690,691 

ity  to  the  effect  that  the  proceedings  may  be  against  either 
tlie  persons  who  officially  undertake  to  exercise  the 
powers  and  functions,  or  against  the  organization  by  the 
name  under  which  it  assumes  to  act.-^ 

§  690.  Receivers.  As  receivers  stand  in  the  phice  of 
the  person  or  corporation  for  whom  they  are  appointed 
and  for  whom  they  are  acting  under  appointment  in  the 
receivership  proceedings,  in  respect  to  the  liability  of 
such  person  or  corporation,^  such  receiver  is  the  proper 
party  defendant  in  all  actions  touching  all  property  the 
subject  of  the  receivership  or  the  management  of  such 
property.  Thus,  a  receiver  of  a  railway  corporation, 
operating  its  railroad,  is  the  proper  party  defendant  in 
an  action  against  the  corporation  to  recover  damages 
upon  a  cause  of  action  arising  prior  to  the  receivership.^ 

§  691.  Specific  performance  —  Constructive  trust. 
In  a  suit  for  specific  performance  of  a  contract,  or  to 
have  declared  a  constructive  or  resulting  trust  in  prop- 
erty, the  rule  as  to  parties  defendant,  requiring  all  who 
have  an  interest  in  the  subject-matter  of  the  controversy, 
or  whose  interests  may  be  adversely  affected  by  any 
judgment  that  may  be  pronounced  or  decree  rendered, 
to  be  parties  defendant,  applies. ^  We  have  already  seen 
that  in  a  suit  for  the  specific  performance  of  a  testator's 
contract  to  convey  lands,  the  executor  is  a  necessary 
party  ;2  and  that  when  the  suit  is  against  the  heirs,  de- 
manding damages  in  the  alternative,  the  executor  or 
administrator  is  a  necessary  defendant.^  On  a  suit  for 
specific  performance  of  a  contract  whereby  the  defen- 
ds Gardner  v.  State  ex  rel.  Busch,  u  International  &  G.  N.  R.  Co.  v. 
77  Kan.  742,  95  Pac.  588;  Deng  v.  Ormond,  57  Tex.  Civ.  App.  79,  121 
Lamb,  77  Kan.  863,  95  Pac.  592.            s.  W.  899. 

1  International  &  G.  N.  R.  Co.  v.  ^  g^^_  ^^^^    gg  QZ7-GZ9. 

Ormond,  57  Tex.  Civ.  App.  79,  121 

S.  W.  899;   McNulta  v.  Lochridge.  '^  See,  ante,  §  657.  footnote  8. 

141   U.   S.   327,   35    L.    Ed.   79G,   12  3  Id.,  footnote  9. 

Sup.  Ct.  Rep.  11. 

939 


§  691  CODE  PLEADING  AND  PRACTICE.  [Ft.  Ill, 

dant  agreed  not  to  sell  or  permit  the  selling  at  his  place 
of  business  of  any  goods  except  those  of  the  plaintiff,  a 
rival  of  the  plaintiff,  whose  goods  it  is  sought  to  prohibit 
the  defendant  from  selling,  is  not  a  necessary  or  a  proper 
I^arty  defendant.'*  On  a  suit  seeking  the  specific  perform- 
ance of  a  contract  to  transfer  shares  of  stock  of  a  cor- 
poration, where  it  is  not  alleged  in  the  complaint  (1)  that 
the  defendant  is  insolvent,  or  (2)  that  he  is  about  to 
dispose  of  the  stock,  no  cause  of  action  is  stated  against 
the  corporation,  and  it  is  not  a  necessary  party  defen- 
dant.'^ In  an  action  upon  a  joint  and  several  contract 
executed  by  ten  sigiiers,  upon  which  contract  six  of  the 
signers  had  paid  their  obligations  to  the  plaintiff,  a  com- 
plaint is  not  demurrable  upon  the  ground  that  there  is 
a  non-joinder  of  parties  where  suit  is  brought  only  against 
the  defendants  who  are  in  default.® 

A  constructive  or  resultant  trust  sought  to  be  estab- 
lished and  enforced,  we  have  already  seen  that  where  the 
subject-matter  is  shares  of  stock  of  a  corporation,  and  it 
appears  that  a  person  not  a  party  to  the  action  has  or 
claims  an  interest  in  the  shares  of  stock,  he  is  a  necessary 
party  defendant,  and  that  the  court's  failure  to  order 
him  l)rought  in  is  error. "^  Where  it  is  sought  to  have  the 
grantor  of  land  declared  to  have  been  a  trustee  for  the 
plaintiff,  and  to  have  his  deed  set  aside,  such  grantor  is 
not  an  indispensable  party  defendant  to  the  action.'^ 
Under  a  complaint  in  a  suit  in  equity  praying  specific  per- 
formance, as  against  one  of  the  defendants,  or  a  contract 
to  convey  a  mine  and  to  pay  one-eighth  of  the  net  price 
thereof,  alleging  a  sale  and  conveyance  to  the  defendant 
corporation,  and  as  against  the  other  defendants,  to  have 
it  adjudged  that  their  ownership  of  the  shares  of  stock 

4  Buttrick  Pub.  Co.  v.  Fisher,  203  6  Champlin  Bros.  v.  Sperling,  84 
Mass.  122,  133  Am.  St.  Rep.  283,  89      Neb.  633,  121  N.  W.  976,  977. 

N.  E.  189.  7  See,    ante,    §  648,    footnotes    9 

5  Lucas  V.  Milliken,  139  Fed.  816.      and  10. 

s  Mackay  v.  Gobel,  117  Fed.  873, 

910 


ell.  V.J  STRIKING  OUT  DEFENDANTS.  §  692 

issued  to  them  was  subject  to  a  constructive  trust  in  favor 
of  the  plaintiff,  where  it  appears  that  all  such  stock  is 
involved  in  the  transaction,  and  that  the  stock  held  by  the 
alleged  constructive  trustees  is  charged  wdth  the  claim 
of  the  plaintiff  and  with  notice  of  such  claim,  the  cor- 
poration and  all  its  stockholders  are  necessary  party 
defendants.^ 

§  692.  Striking  out  defendants — In  general.  The 
common-law  rule  that  a  plaintiff,  having  sued  several 
defendants  in  an  action  ex  contractu,  must,  as  a  general 
rule,  recover  against  all,  or  be  nonsuited  at  the  trial,  has 
been  changed  by  the  procedural  codes. ^  The  trial  court  is 
invested  with  a  judicial  discretion  to  order  names  of  plain- 
tiffs or  of  defendants  stricken  from  the  complaint,  and 
in  the  absence  of  a  showing  of  an  abuse  of  discretion,  the 
ruling  will  not  be  disturbed.-  Thus,  where  an  action  is 
brought  in  the  name  of  two  persons  as  copartners,"'  and 
it  is  sho"svn  that  they  are  not  partners,  and  that  but  one  of 
them  is  the  real  party  in  interest,  the  court  may  allow  the 
complaint  to  be  amended  by  striking  out  the  name  of  the 
other  plaintiff'.^  AVliere  the  plaintiff  impi-operly  joins  as 
parties  defendant  persons  having  no  interest  in  the 
subject-matter  of  the  controversy,  and  who  will  not  be  ad- 
versely affected  by  any  judgment  that  may  be  entered,  on 
the  discovery  of  that  fact,  the  names  of  such  persons  may 
be  ordered  stricken  out,^even  though  the  other  defendants, 

9  Kinard  v.  Jordan,  10  Cal.  App.  3  As    to    copartners,    see,    ante, 

219,  101  Pac.  696.  §  652. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  ^  HamiU  v.  Ashley,  11  Colo.  180, 

Proc,  §  473;   Morrissey  v.  Schind-  ^^  p^^   5^3 ;  Wiesner  v.  Young.  50 

ler.l8Neb.672,76N.W.476.  Minn.  21.  52  Pac.  390. 

!•  Tonney  v.  Pierce,  49  Cal.  306; 

Hudson  V.  Feige.  58  Mich.  148,  24  ^  Fisk  v.  Henarie,  14  Ore.  29.  13 

N.    W.    863;    Neher   v.    Armijo,    9  Pac.  193;  Liggett  v.  Ladd,  23  Ore. 

N.   M.  325,   54   Pac.   236;    York  v.  26,  31  Pac.  26;  Brown  v.  Packard. 

Nash.    42    Ore.    321,    71    Pac.    59;  4    Utah   292,   9   Pac.    573,    11    Pac. 

Dean  v.  Oregon  R.  &  Nav.  Co.,  38  512;    Ohvell    v.    Skobis,    126    Wis. 

Wash.  565,  80  Pac.  842.  'JOS,  105  N.  W.  777. 

941 


§§  693,  694       CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

in  their  answer,  may  liave  raised  a  plea  in  abatement  for 
misjoinder  of  parties  defendant.^  But  a  failure  to  amend 
the  complaint  by  striking  out  of  the  names  of  the  persons 
having  no  interest  in  the  subject-matter  of  the  con- 
troversy as  defendants,  is  not  prejudicial  error,^  because, 
under  the  procedural  codes,  the  plaintiff  may  have  judg- 
ment against  one,  or  any,  or  all  of  the  defendants,  as  the 
proof  warrants.^ 

^  693,    Persons  who  may  not  be  dismissed.    The 

grounds  for  omitting  or  dispensing  with  parties  to  a  suit 
has  already  been  sufficiently  discussed;^  and  we  have 
already  seen  that  in  those  cases  in  which  there  is  virtual 
representation,-  especially  where  the  parties  are  numer- 
ous and  it  is  difficult  to  bring  them  all  before  the  court,=^ 
they  may  be  omitted.  But  in  all  those  cases  in  which  a 
party  sued  is  bound  on  the  obligation,-^  or  is  a  necessary 
party  to  enable  the  court  to  fully  determine  the  con- 
troversy before  it,^  he  can  not  be  dismissed ;  the  plaintiff 
has  a  right  that  he  remain  in  court  until  his  case  is  tried.^ 

§  694.  Substitution  of  parties — In  general.  The  sub- 
stitution of  parties  in  an  action  is  to  be  distinguished 
from  an  amendment  of  the  pleadings  by  striking  out  the 
names  of  parties  plaintiffs  or  defendants,^  or  by  bringing 

cMorrissey  V.  Schindler,  ISNeb.  ^  See,    ante,    §646;    Gillespie   v. 

672    26  N   W   476  Gouly,  152  Cal.  643,  93  Pac.  856. 

As  to  misjoinder  generally,  see,  Party   without    interest   improp- 

„  poA  eiiy  joined  as  plaintiff  snoula  be 

ante,  §  680.  ■'  .■'           ^       ^,           .■             ^ 

„.  ^  1    onn  dismissed    from    the    action,    and 

7  Belser  v.  Allman,  134  Cal.  399.  .^^^^^^^  rendered  in  favor  of  the 
66  Pac.  492.  remaining  plaintiff.  —  Gillespie   v. 

8  See  Morrissey  v.  Schindler,  18  Qouiy^  152  Cal.  643,  93  Pac.  856. 
Neb.  672;  Fisk  v.  Henarie,  14  Ore.  g^^'  Kerr's  Cyc.  Cal.  Code  Civ. 
29,  13  Pac.  193.  Proc,  §  578. 

See  Kerr's  Cyc.  Cal.   Code  Civ.          .-,  See,  ante,  §§637-639;   Rowe  v. 

Proc,  §  578.  Simmons,  113  Cal.  688,  45  Pac.  983. 

1  See,  ante,  §  640.  •            c  See  Hester  v.  Brennan,  37  Cal. 

2  See,  ante,  §§  656,  684.  385. 

3  See,  ante,  §  644.  1  See,  ante,  §§  692,  693. 

942 


t'^'-  ^'-J  SUBSTITUTION   OF   DEFENDANTS.  §  G!)5 

in  new  parties-  to  the  action.^  Amendments  are  made  hv 
the  plaintiff,  on  leave  of  the  court ;  substitution  of  pai-ties 
is  by  order  of  the  court.^  The  California  procedural  code 
provides  that  a  defendant,  against  whom  an  action  is 
p(3nding  upon  a  contract,  or  for  specific  personal  prop- 
erty, may,  at  any  time  before  answer,  upon  affidavit  tliat 
a  person  not  a  party  to  the  action  makes  against  him,  and 
without  any  collusion  with  him,  a  demand  upon  such  con- 
tract, or  for  such  property,  upon  notice  to  such  person 
and  the  adverse  party,  apply  to  the  court  for  an  order 
to  substitute  such  person  in  his  place,  and  discharge  him 
Trom  liability  to  either  party,  on  his  depositing  in  court 
the  amount  claimed  on  the  contract,  or  delivering  the 
property  or  its  value  to  such  person  as  tlie  court  may 
direct;  and  the  court  may,  in  its  discretion,  make  tlie 
order.^  The  order  of  substitution  may  be  made  and  the 
action  of  interpleader  may  be  maintained,  and  the  appli- 
cant or  defendant  be  discharged  from  liability  to  all  or 
any  of  the  conflicting  claimants,  although  their  titles  or 
claims  have  not  a  common  origin,  or  are  not  identical,  but 
are  adverse  to  and  independent  of  one  another.^ 

§  695.    Persons     entitled     to     be     substituted. 

Among  the  persons  entitled  to  be  substituted  in  an  action 
under  the  provisions  of  the  California  procedural  code 
as  set  out  in  the  preceding  section,  and  the  further  pro- 
vision as  to  amendments,^  are:  Assignees;-  distributees 
of  the  estate  of  a  decedent;-^  grantees  of  land  which  is  the 
subject-matter  of  the  controversy;"*  transferee  of  cause 
of  action  under  the  code  provision^  may  be,  but  this  is  a 

-'See,  ante,  §§647-650.  2  Loughborough  v.  McNevin.   74 

••■.  Kittle    V.    Bellegarde,    86  Cal.      Cal.  250,  257,  5  Am.  St.   Rep.  435, 
556,  563,  25  Pac.  55.  14  Pac.  369.  15  Pac.  773. 

^  ^^-  :'  Cockrill  v.  Clyma,  98  Cal.  123, 

J"'  Kerr's    Cyc.     Cal.    Code  Civ.      32  Pac.  888. 
Proc,  §  386.  4  Plummer  v.  Brown,  6 1  Cal.  429, 

•■■  Id.  1  Pac.  703. 

1  See  Kerr's  Cyc.  Cal.  Code  Civ.  r.  See  Kerr's  Cyc.  Cal.  Code  Civ. 

Proc,  §  473.  Proc,  §  385. 

943 


§  696  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

permissive  riglit  by  the  grace  of  the  court,  not  by  lejal 
demand,*' — thus,  an  attorney  taking  an  assignment  to  him- 
self after  recovery  of  a  judgment  for  his  client,  on  the 
suggestion  of  the  death  of  his  client,  may  be  substituted 
in  his  place."  A  trustee  under  a  mortgage  securing  the 
bonds  of  a  water  company,  may  be  substituted  for  the 
bondholders  who  have  brought  a  suit  to  enjoin  the  en- 
forcement of  a  city  ordinance  on  the  ground  that  the  price 
of  water  fixed  thereby  is  so  low  as  to  amount  to  a  taking 
of  property  without  compensation.^ 

§  696.    Grounds  for  substitution.    The  grounds 

for  asking  a  substitution  must  be  substantial  for  the 
protection  of  an  interest  and  the  furtherance  of  justice. 
Thus,  the  court  will  not  permit  the  substitution  of  a  party 
as  plaintiif  on  the  ground  that  he  was  the  real  party  in 
interest  at  the  time  of  the  commencement  of  the  action  ;^ 
or  permit  the  assignee  of  the  successful  party  on  pur- 
chase after  judgment,  to  be  substituted  for  such  party  on 
appeal,  where  it  appears  that  the  same  attorney  repre- 
sented the  unsuccessful  party  and  is  the  attorney  rep- 
resenting the  assignee  moving  for  a  substitution.^ 
A  corporation  which  has  forfeited  its  franchise  for  non- 
pajanent  of  its  license-tax,  and  thereafter  commenced  an 
action  in  its  corporate  name,  is  entitled  to  have  the  names 
of  its  directors,  as  trustees,  substituted  for  its  own  name 
as  party  plaintiff;  and  whenever  in  the  course  of  the 

6  Fav  V.  Steubenrauch,  138  Cal.      —Hester  v.  Brennan,  37  Cal.  386, 

388. 


656,  72  Pac.  156.  See  Hestres  v. 
Brennan,  37  Cal.  386,  388;  Cam- 
arillo  V.  Fenlon,  49  Cal.  202;  Miller 
V.  Luco,  80  Cal.  257,  264,  22  Pac. 


7  Potts  V.  Paxton,  171  Cal.  493, 
153  Pac.  957. 

8  Benson  v.  San  Diego,  City  of, 
100  Fed.  158. 


195;    Emerson   v.   McWhlrter,   128  i  Dubbus  v.  Goax,  51  Cal.  153; 

Cal.  268,  60  Pac.  774.  Hallett  v.  Larcom,  5  Idaho  492,  51 

Transferee  of  cause  of  ejectment      Pac.  108. 
may    continue    action    in    original  2  Emerson    v.     McWbirter,     128 

plaintiff's  name,  or  be  substituted.      Cal.  268,  60  Pac.  774. 

944 


eh.  v.]  APPLICATION   FOR  SUBSTITUTION.  §  697 

action  the  facts  are  brought  to  the  attention  of  the  court, 
either  by  the  pleadings  and  proof  of  the  defendant,  or 
by  the  suggestion  of  the  plaintiff,  it  is  the  duty  of  the  trial 
court  to  order  the  substitution,  and  to  fail  to  do  so  will 
be  error  on  the  part  of  the  court.^ 

(^  697,   . Application  for  substitution  :  Proceeding 

THEREON.  In  tliose  cases  in  which  there  has  been  a  trans^ 
fer  of  the  property  or  interest  by  the  plaintiff  pendente 
lite,  the  substitution  of  the  person  acquiring  the  interest, 
under  the  provisions  of  the  statute,  is  a  matter  that  rests 
solely  with  the  plaintiff  and  the  person  to  whom  the  trans- 
fer was  made.  The  change  of  parties  can  be  set  in  motion 
only  by  the  plaintiff  or  his  transferee,  and  the  plaintiff 
is  not  authorized  to  act  in  opposition  to  the  rights  of  the 
transferee,  who  may  continue  the  action  in  the  name  of 
the  plaintiff  or  be  substituted  in  his  place  as  he  may 
desire;^  the  defendant  can  not  have  such  substitution 
made.2  But  while  the  defendant  can  not  move  the  sub- 
stitution of  the  transferee,  he  may  raise  the  question  by 
supplemental  answer.^  On  an  application  for  the  sub- 
stitution of  parties,  the  person  whom  it  is  desired  to  have 
substituted  is  entitled  to  an  opportunity  to  question  the 
right  of  the  person  applying  for  the  substitution  to  make 
such  application  ;*  hence  the  application  must  always  be 
made  upon  notice  and  an  opportunity  to  be  heard,^  be- 
cause in  any  proceedings  of  a  judicial  character,  one 

8  Kehrlein-Swinerton  Constr.  Co.  166,  177,  46  L.  R.  A.  839,  51  N.  E. 

V    Ropken,    30   Cal.   App.    11,    156  997;  Packard  v.  Wood,  17  Abb.  Pr. 

pg^^   9Y2  (N-   Y-^    ^1^'   ^^^'    Smith   v.    Har- 

','      ^        ,         .  ^    ,  ^.,  ^„  rington,  3  Wyo.  503,  27  Pac.  803; 

1  Knobloch  V.  Associated  Oil  Co..  ^^  ^    p.^^^  ^^  ^^^    ^^^    ^^3 

170  Cal.  144,  148  Pac.  938.  3  j.^^^^^^^  ^  Brennan.  37  Cal.  386. 

See,  also,  cases  in  next  footnote.  4  Higgins  v.  Kay,  168   Cal.   468, 

2  Hestres    v.    Brennan,    37    Cal.  143  pac.  710.    See  Altpeter  v.  Pos- 
386,  388;  Higgins  v.  Kay,  168  Cal.  tal    Telegraph-Cable    Co.,    26    Cal. 
468,    143    Pac.    710;     Chisholm    v.  App.  705,  148  Pac.  241. 
Clitherall,     12     Minn.     375,     379;  n  Higgins  v.  Kay,   168  Cal.   468, 
Hirshfpld  v.  Fitzgerald,  157  N.  Y.  143  Pac.  710. 

I  Code  PI.  and  Pr.— CO  945 


§  698  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

whose  rights  or  interests  may  be  alTected  by  the  action 
therein  is  entitled  to  a  notice  and  an  opportunity  to  be 
heard.^  In  an  action  against  a  bank  to  recover  a  sum  of 
money,  to  the  right  to  receive  which  adverse  claims  are 
made,  on  payment  by  the  bank  of  the  money  into  court 
under  an  attachment  levied  by  the  sheriff  in  the  action, 
the  sheriff  may  be  substituted  as  defendant  in  the  place 
of  the  bank,  notwithstanding  the  bank  has  filed  an  answer 
in  the  action,  where  the  notice  of  motion  for  substitution 
was  serv^ed  before  the  answer  was  filed  J  But  where  there 
is  no  joint  interest  or  privity  of  interest,  another  defen- 
dant can  not  be  substituted  for  the  person  originally 
sued.^  Thus,  in  a  case  where  there  was  a  California  cor- 
poration and  a  New  York  corporation  having  identically 
the  same  name,  and  the  plaintiff  in  the  title  to  his  cause 
gave  the  common  name,  and  in  the  body  of  the  complaint 
described  the  defendant  as  a  corporation  organized  under 
the  laws  of  New  York,  he  can  not  thereafter  amend  his 
complaint  by  substituting,  in  the  body  thereof,  ''Cali- 
fornia" for  ''New  York,"  thereby  substituting  a  new 
defendant.^  Where  an  order  is  made  in  the  Supreme 
Court  substituting  a  party  on  account  of  the  death  of  the 
original  party  to  the  action,  correct  practice  requires  a 
like  order  to  be  entered  in  the  trial  court,  or  other  lower 
court  from  which  the  appeal  was  taken,  on  proper 
showing.^" 

§  698.    Mode   of   substitution    of   pahties.      The 

method  by  which  a  substitution  of  parties  is  made  is 
governed  by  the  provisions  of  the  statute  and  the  prac- 
tice in  the  particular  jurisdiction ;  but  in  no  jurisdiction 
can  a  new  plaintiff  and  a  new  cause  of  action  be  substi- 
tuted under  the  guise  of  an  amendment  of  the  complaint.^ 

^  Id.  9  Id. 

7  Cassidy  v.  Norton,  25  Cal.  App.  lo  Reay   v.    Heazelton,    128    Cal. 

433,  143  Pac.  1057.  335,  60  Pac.  977. 

s  Altpeter  v.    Postal   Telegraph-  i  Hallett  v.  Larcom,  5  Idaho  492, 

Cable  Co.,   26  App.   Dec.  705,   148  51  Pac.  108. 
Pac.  241. 

946 


eh.  v.]  PROCEEDING  AFTER  SUBSTITUTION.  §  699 

A  substitution  of  parties  may  be  made  by  an  entry  in  the 
minutes  of  the  court,^  and  a  personal  representative  may 
be  substituted  by  ex  parte  motion.^  Other  persons  may  be 
substituted,  under  statute  and  local  practice :  By  motion  ;^ 
or  by  motion  supported  by  affidavit;^  or  by  motion  and 
supplementary  pleading.^ 

(^  699.  Pkoceedings  after  substitution.  As  a  gen- 
eral rule,  the  substituted  party  takes  up  the  prosecution 
or  defense  at  the  point  where  the  original  party  left  it, 
assuming  the  burden  as  well  as  receiving  the  benefits.^ 
In  California,  we  have  already  seen,  a  person  acquiring 
an  interest  in  the  subject-matter  of  the  litigation  pendente 
lite,  may  prosecute  or  defend  the  action  in  the  name  of  the 
original  party  or  may  be  substituted  in  his  place;-  where 
he  elects  the  former  alternative,  the  court  may  give  judg- 
ment according  to  the  conditions  existing  at  the  time  the 
case  was  begim;^  but  Avhere  one  is  substituted  on  the 
ground  of  an  assignment  of  the  subject-matter  of  the 
cause  of  action,  the  assignment  must  be  alleged  in  a  sup- 
plemental complaint,  and,  where  denied,  must  be  proved.-* 

2  Kittle    V.    Bellegrade,    86    Cal.  590,  109  N.  W.  452;  Finnan  v.  Bate- 

556,    563,   25   Pac.   55;    Cockrill   v.  man,  2  Utah  268. 

Clyman,  98  Cal.  123,  32  Pac.  888.  5  Smith   v.    Harrington,   3   Wyo. 

Order  should  be  entered  on  min-  503,  27  Pac.  803;    Smith  v.  Chey- 

utes  of  the  court  as  a  distinct  or-  enne,  City  of,  3  Wyo.  513,  27  Pac. 

der  made  before  judgment,  but  the  §07. 

fact  that  it  is  prefixed  to  the  judg-  ^  Powell  v.  Nolan,  27  Wash.  318, 

ment,   recorded  in   the  judgment-  g^  p^^   rj-jg 

book,  and  made  a  part  of  the  judg- 

'     „  ^  /    „     ^  .^     „  ,, ,  1  Fannon  v.  Robmson,   10   Iowa 

ment-roU  does  no    affect  its  val  d-  ^  ^^  ^^^^^  ^^^ 

ity.-Cocknll  V.  Clyma,  98  Cal.  123,      ^  ^'    ^    ^^^_   ^^^^^  ^    ^^^^^^^  ^^^ 


Iowa   105,    107,    119    Ann.   St.    Rep. 

549,  105  N.  W.  590,  109  N.  W.  542. 


32  Pac. 

8  Ford  V.  Bushard,  116  Cal.  273, 
276   48  Pac   119 

4'Lindsey  V.  Lindsey,  28  Ga.  169;  -  See.  ante.  §  697,  footnote  1. 

Chicago  Legal  News  Co.  v.  Browne,  3  Knobloch  v.  Associated  Oil  Co., 

103  111.  317;  Ferry  v.  Page,  8  Iowa      170  Cal.  144,  148  Pac.  938. 
455;  Crary  v.  Kurtz,  132  Iowa  105,  4  Ford  v.  Bushard,  116  Cal.  273, 

119  Am.  St.   Rep.  549,   105  N.  W.      48  Pac.  119. 

947 


§§  700,  701       CODE  PLEADING  AND  PRACTICE.  [Ft.  Til, 

§  700.  Tenants  in  common.  The  rules  of  law  as  to 
joining  as  defendants  tenants  in  common  are  the  same 
as  govern  in  the  case  of  joint  tenants,  already  discussed.^ 
And  we  have  already  seen-  that  the  children,  after  the 
death  of  their  mother,  being  tenants  in  common  with  their 
father  of  the  community  property,  are  necessary  parties 
defendant  to  a  suit  to  foreclose  a  mortgage  thereon 
executed  by  the  father  to  secure  a  comjnunity  debt.^ 

§  701.  Tort  actions.  We  have  already  discussed  to  a 
limited  extent  the  parties  defendant  in  tort  actions  in  so 
I  far  as  relates  to  frauds,^  and  the  necessity  of  joining  the 
J  husband  as  a  defendant  in  an  action  for  the  tort  of  the 
wife.-  We  have  also  seen  that,  according  to  the  general 
rule  of  law,  a  person  injured  by  the  negligent  or  wrongful 
act  of  two  or  more  persons,  has  a  right  of  action  against 
each  and  all  of  the  joint  tort-feasors  contributing  to  his 
injury,  or  may  sue  any  one  of  them,  at  his  election  f  and 
it  matters  not  that  some  of  the  tort-feasors  are  natural 
persons  and  some  of  them  are  artificial  persons,  or  cor- 
porations, where  the  concurrent  negligent  or  wilful  act 
of  each  contributed  to  the  injury  complained  of,^  because 
the  liability  of  corporations  for  the  negligent  or  wrongful 
acts  of  its  servants  or  agents,  whereby  a  third  person 
suffers  injuries,  depends  upon  the  same  principles  and 
rules  of  law  as  the  liability  of  a  master  for  such  acts  of 
his  servants,  where  such  acts  of  the  corporation  servants 
or  agents  are  in  the  course  of  their  employment,  express 
or  implied,^  although  in  the  particular  act  the  authority  of 

J.  See,  ante,  §573.  5  Id.;   Bissell  v.  Michigan  So.  & 

"i:  See,  ante,  §  638,  footnote  2  and  n.  J.  R.  Co.,  22  N.  Y.  258;    New 

text.  York  &  N.  H.  R.  Co.  v.  Schuyler, 

3  Johnson  V.  San  Francisco  Sav.  3^   ^    ^    3^^   49.    Philadelphia   & 

Union,  63  Cal.  554._  Reading  R.  Co.  v.  Derby,  55  U.  S. 


(14  How.)  486,  14  L.  Ed.  502;  Phil- 


1  See.  ante,  §  659. 

2  See,  ante.  §  678, 

3  See  ante,  §  674  adelphia,  W.  &  B.  R.  Co.  v.  Quig- 
4Brokaw  v.   New   Jersey   R.   &  ^eJ''   ^2    U.    S.    (21   How.)    202,    16 

Transp.   Co.,   32   N.   J.  L.    (3  Vr.)  L-  Ed.  73;  Roe  v.  Birkenhead,  L.  & 

328,  90  Am.  Dec.  G59.  C.  R.  Co.,  7  Ex.  40;  Bayley  v.  Man- 

948 


,-li.  v.] 


TORT  ACTIONS — TRESPASS. 


§702 


the  servant  or  agent  was  abused;*  but  if  the  act  of  the 
agent  or  servant  was  not  within  the  line  of  his  duty, 
unk^ss  especially  authorized,  the  corporation  will  not  be 
liable."  Thus,  it  is  not  within  the  line  of  the  duty  of  the 
manager  of  a  bank  to  arrest  and  prosecute  criminally, 
and  for  such  an  act  on  the  part  of  the  manager,  the  bank 
corporation  will  not  be  liable  in  damages  for  malicious 
prosecution.*  Where  the  offending  servant  is  the  joint 
servant  or  agent  or  two  or  more  corporations  they  will  all 
be  liable;^  and  where  railroad  corporations  are  united  in 
business,  they  may  be  united  as  defendants  in  an  action 
for  a  tort  growing  out  of  the  negligent  conducting  of  that 
business. ^^^ 

<§  702.  Trespass.  The  general  rule  of  law  is  that  a 
trespass  committed  by  several  persons  acting  together 
creates  a  several  liability ;  but  if  the  trespass  is  joint,  all 
the  trespassers  may  be  joined.^   A  justice  of  the  peace 


Chester,  S.  &  L.  R.  Co.,  L.  R.  8 
C.  P.  148,  25  Eng.  Rul.  Cas.  115. 

See,  also,  notes  25  Eng.  Rul.  Cas. 
138-144. 

<i  Bayley  v.  Manchester,  S.  &  L. 
R.  Co..  L..  R.  8  C.  P.  148,  25  Eng. 
Rul.  Cas.  115. 

See,  also,  notes  25  Eng.  Rul.  Cas. 
138-144. 

7  Bank  of  New  South  Wales  v. 
Owston,  4  App.  Cas.  270,  25  Eng. 
Rul.  Cas.  124. 

See,  also,  American  and  English 
cases  in  notes  25  Eng.  Rul.  Cas. 
138-144. 

8  Id. 

9  Moore  V,  Southern  R.  Co.,  165 
N.  C.  439,  51  L.  R.  A.  (N.  S.)  866, 
81  S.  E.  603. 

As  to  liability  of  joint  employers 
for  torts  of  employees,  see  note  51 
L.  R.  A.  (N.  S.)  866. 

10  Bissell  V.  Michigan  So.  &  N.  J. 
R.  Co.,  22  N.  Y.  262. 

1  CAL. — McCarran  v.  O'Counell. 


7  Cal.  152;  Davidson  v.  Dallas,  8 
Cal.  227,  253;  Myers  v.  Daubenbiss, 
84  Cal.  1,  5,  23  Pac.  1027.  KAN.— 
Sharpe  v.  Williams,  41  Kan.  56,  20 
Pac.  497.  ME.  —  Woodbridge  v. 
Camor,  49  Me.  353,  77  Am.  Dec. 
263.  MASS.— Sumner  v.  Tileston, 
21  Mass.  (4  Pick.)  308.  MINX.— 
Sanborn  v.  Sturtevant,  17  Minn. 
200.  N.  Y. — Waterbury  v.  Wester- 
velt,  9  N.  Y.  598,  1  Seld.  Notes  260; 
Creed  v.  Hartman,  29  N.  Y.  591, 
86  Am,  Dec.  341;  Marsh  v.  Backus, 
16  Barb.  483,  488;  Kasson  v.  People 
ex  rel.  Rease,  44  Barb.  347;  Her- 
ring V.  Hoppock,  10  N.  Y.  Super. 
Ct.  Rep.  (3  Duer)  20;  King  v. 
Orser,  11  N.  Y.  Super.  Ct.  Rep.  (4 
Duer)  431.  WIS.— G  e  r  h  a  r  d  t  v. 
Swaty,  57  Wis.  24,  14  N.  W.  851. 

Hiders  and  abettors  original 
trespassers. — Rowe  v.  Bradley,  12 
Cal.  226;  Lewis  v.  Johns,  34  Cal. 
629. 

Owner  selling  trees  liable  jointly 


949 


702 


CODE  PLEADING  AND  PRACTICE. 


[Pt.  Ill, 


who  issues  an  execution  commanding  the  arrest  of  a 
judgment  debtor,  and  the  attorney  who  procures  the 
execution  to  be  issued,  in  a  case  in  which  both  know  that 
the  law  prohibits  an  arrest  in  such  an  action,  are  jointly 
liable  to  the  debtor  in  trespass  -^  but  neither  the  claimant 
nor  his  attorney  are  liable  for  damages  caused  by  a  con- 
stable in  executing  a  writ  of  restitution.^  Trespass  lies 
against  a  municipal  corporation,^  or  a  railroad  corpora- 
tion, in  an  action  for  tort.^  A  person  and  a  corporation 
for  whom  he  worked  are  both  liable,  and  plaintiff  may 
elect  to  sue  either  or  both.® 


in  trespass  in  cutting  trees  on 
lands  of  another. — Sanborn  v.  Stur- 
tevant,  17  Minn.  200.  See  Caugliie 
V.  Brown,  88  Minn.  469,  93  N.  W. 
565;  Gerbig  v.  Bell,  14  Wis.  157, 
126  N.  W.  871. 

Partner  jointly  liable  for  a  tres- 
pass upon  land,  when  committed 
for  the  benefit  of  the  firm. — Ger- 
hardt  v.  Swaty,  57  Wis.  24,  14 
N.  W.  851. 

Purchasers  of  timber,  which  is 
to  become  their  property  when 
severed  and  marked,  are  not  joint 
wrongdoers  with  the  vendor,  who 
cuts  the  timber  from  the  land  of 
another  without  their  knowledge, 
consent  or  ratification,  such  ven- 
dor not  being  their  agent. — Nield 
V.  Burton,  49  Mich.  53,  12  N.  W. 
906. 

Subsequent  assent  has  effect  to 
make  person  jointly  liable  with 
the  person  actually  offending  the 
same  as  though  he  had  partici- 
pated in  the  act. — Brown  v.  Web- 
ster City,  115  Iowa  515,  88  N.  W. 
1070. 

Compare:  Smith  v.  Lozo,  4-2 
Mich.  6,  3  N.  W.  227. 


2  Mitau  V.  Roddan,  149  Cal.  1,  6 
L.  R.  A.  (N.  S.)  275,  84  Pac.  145; 
Sullivan  v.  Jones,  68  Mass.  (2 
Gray)  570. 

3  Marks  v.  Culmer,  6  Utah  419, 
24  Pac.  528.  See  Sutherland  v. 
Ingalls,  63  Mich.  620,  6  Am.  St. 
Rep.  332,  30  N.  W.  324. 

Landlord  not  liable  for  trespass 
of  deputy  sheriff  in  executing  a 
writ  of  possession,  where  he  does 
not  participate  therein  in  any  way. 
— Sutherland  v.  Ingalls,  63  Mich. 
620,  6  Am.  St.  Rep.  332,  30  N.  W. 
342. 

4  Allen  V.  Decatur,  City  of,  23 
111.  332,  76  Am.  Dec.  692;  Frede- 
rick v.  Lansdale  Borough,  156  Pa. 
St.  613,  27  Atl.  563. 

5  See,  ante,  §  701. 

6  Koch  V.  Story,  47  Colo.  335, 
107  Pac.  1093. 

General  agent  of  corporation  not 
liable  for  forcible  trespass  com- 
mitted by  employees  of  the  cor- 
poration, in  removing  a  sewing 
machine  under  his  directions,  and 
the  directions  of  the  corporation, 
although  he  subsequently  ratifies 
the  act. — Smith  v.  Lozo,  42  Mich. 
6,  3  N.  W.  227. 


950 


ch.  v.] 


TRUSTEES — CESTUIS  QUE  TRUST. 


§703 


§  703.  Trustees.  The  general  rule  of  procedural  law 
is  that  where  a  trustee  brings  a  suit  to  recover  the  trust 
property  which  does  not  give  rise  to  any  conflict  of  inter- 
est between  him  and  the  cestui  que  trust,  and  does  not 
involve  any  investigation  as  to  their  relations,  the  latter 
is  not  a  necessary  party.^  But  if  the  action  is  to  determine 
the  rights  as  between  the  cestuis  que  trust  or  beneficiaries, 
or  as  between  the  trustee  and  the  beneficiaries  ;2  is 
brought  by  or  against  the  trustee  respecting  the  trust 
property;^  to  carry  out  the  trust  deed,  or  against  a  trus- 
tee for  a  breach  of  trust,^  all  the  cestuis  que  trust  are 
necessary  parties.^  The  California  procedural  code  per- 
mitting a  trustee  of  an  express  trust  to  sue  alone^  does 
not  apply  to  an  action  to  foreclose  a  deed  of  trust  given 
to  secure  the  claims  of  different  persons,  in  which  an 
accounting  is  necessary  to  determine  the  different  inter- 
ests."^ The  cestuis  que  trust  need  not  be  joined  as  defen- 
dants in  an  action  by  creditors  to  reach  the  trust  property 


1  ALA. — Swift  V.  Stebbins,  4 
Stew.  &  P.  447.  CAL.— Mitau  v. 
Roddan,  149  Cal.  1,  6  L.  R.  A. 
(N.  S.)  275,  84  Pac.  145.  MASS.— 
Boyden  v.  Partridge,  68  Mass.  (2 
Gray)  190;  Ashton  v.  Atlantic 
Bank,  86  Mass.  (4  Allen)  217. 
FED.— Carey  v.  Brown,  92  U.  S. 
172,  23  L.  Ed.  469.  ENG.— Horsley 
V.  Fawcett,  11  Beav.  656,  50  Eng. 
Rep.  935. 

2  Stuart,  Estate  of,  126  N.  Y.  212, 
27  N.  E.  259. 

3  Story's  Equity  Pleading  (9th 
ed.),  §207. 

4  Bishop  V.  Houghton,  1  E.  D. 
Smith  (N.  Y.)  566;  Bank  of  Brit- 
ish North  America  v.  Suydam,  6 
How.  Pr.  (N.  Y.)  379;  Johnson  v. 
Snyder,  8  How.  Pr.  (N.  Y.)  498; 
Colgrove  v.  Tallmadge,  19  N.  Y. 
Super.  Ct.  Rep.  (6  Bosw.)  289. 

5  Goddard  v.  Prentice,  17  Conn. 


555;  Barney  v.  Spear,  17  Ga.  223: 
Dunn  V.  Seymour,  11  N.  J.  Eq.  (3 
Stockt.)  220;  Nichols  v.  William- 
son, 25  N.  J.  Eq.  63;  Tyson  v.  Ap- 
plegate,  30  N.  J.  Eq.  305,  311;  Bro- 
haw  V.  Brohaw,  41  N.  J.  Eq.  216: 
Begaw  V.  Claw,  4  Johns.  Ch. 
(N.  Y.)  116;  Fish  v.  Howland,  1 
Pai.  Ch.  (N.  Y.)  20;  Moseley  v. 
Hankinson,  22  S.  C.  323;  Headrick 
V.  Ruble,  78  Tenn.  (10  Lea)  15; 
Hall  V.  Harris,  11  Tgx.  300;  Mon- 
day V.  Vance,  11  Tex.  Civ.  App. 
374,  32  S.  W.  559;  Pyle  v.  Hender- 
son, 55  W.  Va.  122,  46  S.  E.  791; 
Iowa  County  v.  .Mineral  Point  I^ 
Co.,  24  Wis.  93;  Corey  v.  Brown. 
92  U.  S.  171,  23  L.  Ed.  469;  Vatter- 
lein  V.  Barnes,  124  U.  S.  169,  31 
L.  Ed.  400,  8  Sup.  Ct.  Repji441. 

6  Kerr's    Cyc.    Cal.    Code    Civ. 
Proc,  §369;  see,  ante,  §610. 

7  Mitau  V.  Roddan.  149  Cal.  1,  fi 
L.  R.  A.   (N.  S.)   275,  84  Pac.  145. 


951 


§  703  CODE  PLEADING  AND  PRACTICE.  [Pt.  Ill, 

in  the  hands  of  the  trustee,  because  in  such  a  case  tlie 
defense  of  the  trustee  is  the  defense  of  the  cestuis  que 
trust,  and  their  presence  in  court  is  not  necessary  to  the 
protection  of  their  interests.^  The  same  rule  applies  in 
an  action  to  set  aside  the  trust  or  a  trust  deed.^  A  partj^ 
not  a  trustee  may  be  joined  or  not,  at  the  option  of  the 
plaintiff.^^  In  an  action  by  one  of  several  cestuis  que  trust 
to  declare  and  enforce  an  implied  trust,  all  who  claim  to 
be  entitled  to  a  portion  of  the  trust  estate  are  projjer  par- 
ties defendant. ^^  Generally,  when  there  are  several 
cestuis  que  trust,  and  one  is  joined,  all  should  be  par- 
ties;^- but  a  cestui  que  trust  who  has  transferred  his 
interest  need  not  be  made  a  party  defendant.^^  But  when 
such  share  is  ascertained,  each  claimant  may  sue  alone  ;^^ 
or  for  breach  of  trust.^^  Persons  holding  funds,  and  who 
have  always  dealt  with  them  as  if  they  were  trust  funds, 
are  liable  for  losses  occasioned  by  improper  investments, 
though  they  did  not  in  fact  know  who  the  cestuis  que  trust 
were.^*^   So,  where  A  was  indebted  to  plaintiff,  and  con- 

s  See  Green  v.  Grant,  143  111.  61,  How.  496,  499,  67  Rev.  Rep.  1260, 

18  L.  R.  A.  381,  32  N.  E.  369;  Wins-  1262. 

low  V.  Minnesota  &  Pac.  R.  Co.,  4  n  Jenkins  v.  Frink,  30  Cal.  586, 

Minn.  313,  77  Am.   Dec.  519;    Chi-  89  Am.  Dec.  134;  General  Mut.  Ins. 

cago,  R.  I.  &  P.  R.  Co.  V.  Howard,  Co.  v.  Benson,  12  N.  Y.  Super.  Ct. 

74  U.  S.   (7  Wall.)   392,  19   L.  Ed.  Rep.   (5  Duer)   168;   Armstrong  v. 

117.  Lear,  33  U.  S.  (8  Pet.)  52,  8  L.  Ed. 

As  to  virtual  representation,  see.  ^63;  West  v.  Randall,  2  Mas.  181. 

ante,  §§  644,  655,  683,  684.  Fed.  Cas.  No.  17424. 

i2McBrown    v.   Dalton,    70    Cal. 


Cestuis  que  trust  may  be  made 
jiarties,  however,  in  those  cases  in 
which  facts  exist  to  justify  it. — 
Winslow  V.  Minnesota  &  Pac.  R. 
Co.,  4  Minn.  313,  77  Am.  Dec.  519. 


89,  97,  11  Pac.  583;  First  Nat.  Fire 
Ins.    Co.    V.    Salisbury,    130    Mass. 
305;  Denver  &  R.  G.  R.  Co.  v.  Ai- 
ling, 99  U.  S.  463,  25  L.  Ed.  438. 
13  Eldridge  v.  Putnam,  46  Wis. 
0  Russell    v.    Losher,    4    Barb.      205. 
(N.  Y.)   232;   Wallace  v.  Eaton,  5  i4  Smith   v.    Snow,   3   Madd.    10, 

How.  Pr.   (N.  Y.)   99;   Wheeler  v.      gg  ^ng.  Repr.  413. 
Wheedon,  9  How.  Pr.  (N.  Y.)  293;  is  Perry  v.  Knott,  5  Beav.   293, 

Scodder  v.  Voorhis,  7  N.  Y.  Super.      49  g^g.  Repr.  590. 
Ct.  Rep.  (5  Sandf.)  71.  ^  Norris,  Ex  parte,  L.  R.  4  Ch. 

10  Bateman     v.     Margerison,     G      280, 

952 


ell.  v.]  TRUSTEE — LIABILITY  FOR  TORT.  §  703 

veyed  his  property  to  B,  to  be  disposed  of  for  his  benefit, 
and  had  drawn  an  order  in  favor  of  plaintiff  on  B,  ^vho 
had  accepted  it,  and  B  subsequently  conveyed  a  portion 
of  the  property  to  A,  without  consideration,  it  was  liehl 
that  A  was  a  jjroper  and  necessary  party  to  the  action.'" 
Liability  for  tort  on  the  part  of  trustees  is  governed  by 
the  general  rules  of  law  relating  to  the  class  of  tort 
charged,  whether  negligence  causing  jjersonal  injury,*"^ 
trespass,^''  and  the  like.  Thus  we  have  already  seen  that 
a  trustee  of  a  building  is  liable  in  damages  for  injuries 
caused  by  the  negligence  of  the  person  operating  an 
elevator  in  such  building.-" 

17  Lucas    V.    Payne,    7    Cal.    92;  is  See,  ante,  §§  663,  664. 

Shaver     v.     Brainard,     29     Barb.  i9  See,  ante,  §  701. 

(N.  y.)  25.  20  See,  ante,  §  664,  footnote  9, 


953 


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